New South Wales Supreme Court CITATION : Long v Michie [2003] NSWSC 233 HEARING DATE(S) : 15, 16, 17 and 18 October 2002 JUDGMENT DATE : 7 April 2003 JURISDICTION: Equity JUDGMENT OF : Austin J DECISION : See under heading "Conclusion" CATCHWORDS : EASEMENTS AND RIGHTS OF WAY - right of way appurtenant to church property granted in 1856 - obstruction of right of way by closing of access, creation of gardens, construction of garage door, and parking of vehicles - whether evidence showed that right of way was abandoned at general law or should be extinguished under s 89(1)(b) Conveyancing Act - RIGHT OF WAY - EXTINGUISHMENT - whether right of way should be deemed obsolete so as to justify extinguishment under s 89(1)(a) Conveyancing Act - RIGHT OF WAY - REASONABLE USER - whether continued existence of right impeded reasonable user of servient tenements without securing practical benefit to the owner of dominant tenement, so as to justify extinguishment under s 89(1)(a) LEGISLATION CITED : Conveyancing Act 1919 (NSW) ss 88, 89 Real Property Act 1900 (NSW) s 28K Cannon v Villars (1878) 8 Ch D at 821 Chatsworth Estates v Fewell [1931] 1 Ch 224 Couche v Adams [2002] NSWSC 27 Crossley & Sons Ltd v Lightowler (1867) 2 Ch App 478 Denton v Phillpott [1990] NSW Conv R 55-545 Dunnell v Phillips (1982) 2 BTR 9517 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR [97830] 18,100 Finlayson v Campbell (Supreme Court of New South Wales, Young J, unreported, 4 September 1997) Gallagher v Rainbow (1994) 179 CLR 624 Gotobed v Pridmore [1970] 115 Sol Jo 78 Grill v Hockey (1991) 5 BPR 11,421 Guth v Robinson (1977) 1 BPR [97017] CASES CITED : Keefe v Amor [1965] 1 QB 334 Knight v Simmons [1896] 2 Ch 294 McIntyre v Porter [1983] 2 VR 439 Middleton v Arthur [2002] NSWSC 627 Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 R v Chorley (1848) 12 QB 515 Re Henderson's Conveyance [1940] Ch 835 Saggers v Brown (1981) 2 BTR 9329 Swan v Sinclair [1924] 1 Ch 254 Tehidy Medals Ltd v Norman [1971] 2 QB 528 Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 Ward v Ward (1852) 7 Ex 838 [155 ER 1189] Williams v Usherwood (1983) 45 P & CR 235 Zenere v Leate (1980) 1 BPR [97089] Peter Duncansby Long and Joy Ellen Long (P/XD) PARTIES : Christopher Robin Michie and Lindsay Francis Michie (D1/XC1) Robert Frederic Purves (D2/XC2) FILE NUMBER(S) : SC 1323/01 COUNSEL : M J Cohen (P) P B Walsh (D) SOLICITORS : Peter Cornelius & Partners (P) Church & Grace (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J MONDAY 7 APRIL 2003 1323/01 PETER DUNCANSBY LONG & ANOR V CHRISTOPHER ROBIN MICHIE & ANOR JUDGMENT (revised for typographical errors 7 April 2003) HIS HONOUR: The proceedings 1 This is a case about an old system instrument establishing a right of way over properties in East Sydney. The plaintiffs are the registered proprietors of No 186 Palmer Street East Sydney, on which are erected a church and manse. The first defendants are the registered proprietors of No 188, and the second defendant is the registered proprietor of No 190. The three properties are on the eastern side of Palmer Street, which runs in a north-south direction. No 186 is the most northerly of the three properties, and is on the corner of Palmer Street and Stanley Street. No 190 is the most southerly of the three properties, and is on the corner of Palmer Street and a lane called O'Brien's Lane, which runs along the southern boundary of No 190. The buildings are joined to form a continuous row, No 188 being the internal property in the row. 2 The right of way is for the benefit of No 186 as dominant tenement, over a strip of land approximately 1.3 metres (4.5 feet) wide running from the southeastern corner of No 186 along the rear (eastern) boundary of each of No 188 and No 190 as servient tenements, to O'Brien's Lane. It was created by an old system conveyance dated 9 November 1856, registered No 543 book 46. 3 The properties were converted to Torrens title in 1994. The certificate of title initially issued by the Land Titles Office to the plaintiffs did not show the right of way. In May 1989 the plaintiffs lodged a request with the Land Titles Office that the right of way be recorded as a subsisting interest upon the computer folio certificate of their land, and on 23 September 1999 the Registrar-General, acting under s 28K of the Real Property Act 1900 (NSW), issued an edition of the computer folio certificate for the plaintiffs' land in which the benefit of the right of way was recorded. The computer folio certificates for the first and second defendants' properties record the burden of the right of way. 4 By their statement of claim filed on 6 February 2001, the plaintiffs allege that the defendants have substantially interfered with their access to and enjoyment of the right of way, by removing an access gate and replacing it with a timber fence, planting garden beds, erecting a roller shutter door (in the case of the second defendant), and parking motor vehicles. They allege that they have sought removal of the obstructions from the right of way but the defendants have failed to comply. The plaintiffs seek relief by way of declarations affirming their entitlement under the right of way, orders for the removal of all obstructions and reinstatement of the right way, an injunction to restrain the defendants from interfering with the right of way, and damages. 5 By their defence, the defendants contend that the right of way has been extinguished by operation of law by virtue of abandonment by the plaintiffs and their predecessors in title, or that it is otherwise unenforceable. They have also filed a cross-claim seeking orders under s 89 of the Conveyancing Act 1919 (NSW), and also relief based on s 88 of the Conveyancing Act. 6 The defendants say, first, that the right of way has been extinguished, or should now be extinguished by order of the Court, because it has been abandoned. They seek to invoke the common law doctrine of extinguishment by abandonment, which may be reflected in declaratory orders under s 89(3) of the Conveyancing Act, and also the Court's power to extinguish an easement by order on the ground stated in s 89(1)(b). Secondly, they seek to invoke the Court's power to extinguish the easement under both limbs of s 89(1)(a). These are the main grounds they rely on, and I shall consider, in turn, the law and facts relevant to them. The defendants also contend that, if the right of way was resuscitated by virtue of two old system conveyances that took place after the commencement of the Conveyancing (Amendment) Act 1930, the reservation of the right of way in those instruments is unenforceable against them because the instruments did not comply with s 88 of the Conveyancing Act. I shall deal with this point, more briefly, at the end of these reasons for judgment. The law concerning extinguishment at common law and under s 89(1)(b) 7 An easement, when once created, "is perpetual in its nature, being attached to the inheritance and passing with it": Gale on Easements (14th ed, 1972), at 317, quoted by McTiernan J in Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274, 283. Nevertheless it is well established, at common law, that an easement over old system land may be extinguished by release or abandonment, either expressly or by circumstances occurring from which a release may be inferred or assumed: Crossley & Sons Ltd v Lightowler (1867) 2 Ch App 478. 8 An effect of ss 89(3) and (8), read together, is that the common law doctrine of extinguishment by abandonment extends to land held under Torrens title, even though notifications of the existence of the easement appear on the certificates of title relating to the dominant and servient tenements: Treweeke at 301 per Mason J; and at 285 per Walsh J (dissenting). However, the fact (if it be so) that the owner of the dominant tenement acquired that property by purchase, relying on the existence of an easement as shown by the register, may be taken into account in the application of the common law doctrine, or in the exercise of the Court's discretion whether to make a declaration under s 89(3): Treweeke at 301 per Mason J; Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605, 616 per Needham J. 9 Section 89(3) empowers the Court to make an order declaring whether or not, in any particular case, land is affected by an easement, and whether the easement is enforceable. This permits the Court to make a declaration as to the application, in the instant case, of the common law doctrine of abandonment. Additionally, s 89(1) permits the Court to make an order modifying or wholly or partly extinguishing an easement, when one of the specified grounds is established. One of the grounds which the defendants invoke in this case is the second limb of subparagraph (b), which applies if the Court is satisfied that persons of the age of 18 years or upwards and of full capacity for the time being or from time to time entitled to the easement, by their acts or omissions, may reasonably be considered to have abandoned the easement wholly or in part. 10 Although s 89(1) seems to acknowledge that the easement is valid unless and until it is extinguished by the making of an order (Treweeke at 301 per Mason J), it appears that the principles to be applied under the second limb of s 89(1)(b) are no different from the principles of the common law doctrine of extinguishment by abandonment: Grill v Hockey (1991) 5 BPR 11,421 at 11,424 per McLelland J. His Honour said that both under the subsection and at common law, the principles to be applied were those stated in Williams v Usherwood (1983) 45 P & CR 235 at 256: "To establish abandonment of an easement the conduct of the dominant owner must … have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement … Abandonment is not … to be lightly inferred. Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it." 11 Other cases have described the requisite intention as a fixed intention never at any time thereafter to assert the easement or attempt to transmit it to anyone else: Tehidy Medals Ltd v Norman [1971] 2 QB 528; Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173, at 617 per Needham J; Guth v Robinson (1977) 1 BPR [97017] at 9214 per Powell J. 12 Where the grant of an easement creates a single right (for example, the right to draw water, or to walk along a right of footway), the question will be whether that right has been entirely abandoned. Where, however, the grant of an easement creates multiple rights (as in the case of a right of carriageway to be used with or without vehicles), the grantee may, by reason of acts or omissions, be held to have abandoned one or more of those rights: Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173, at 613-4 per Needham J; Guth v Robinson, at 9214 per Powell J. However, as Needham J remarked in the former case (at 613), it will be difficult to establish abandonment of some rights when the evidence shows that other rights continue to be used. 13 In some cases an intention to abandon an easement may be inferred from positive conduct by the owner of the dominant tenement. In other cases, acquiescence may suffice. For example, the failure by the owner of the dominant tenement to object to the owner of the servient tenement placing an obstruction on the site of a right of way which is inconsistent with the exercise of the right by the persons having the benefit of it, may lead to an inference that the owner of the dominant tenement intended to abandon the right of way: Treweeke at 303 per Mason J. 14 In the same case Mason J emphasised (at 302) that the question of inferring an intention to abandon is essentially one of fact, upon which only limited assistance can be obtained from statements of general application made in other cases. Although the question is one of fact, case law gives some guidance with respect to the significance of three matters: namely, non-user over an extended time; the availability of alternative access; and obstructions preventing or limiting the use of the easement. Non-user 15 The significance of non-user over an extended time was a matter in issue in Treweeke's case. There a right of way, created in 1927, extended over a rock ledge down to a beach, and could not be used without substantial expenditure. The owner of the servient tenement constructed a fence across the right of way in 1958, and there was another fence across it that had been erected at the shared cost of the owners of the dominant and servient tenements in 1933, as a safety measure. The owner of the servient tenement constructed a swimming pool across the right of way in 1956. The occupiers of the dominant tenement did not use the right of way at any stage, using instead a path to the beach through the servient tenement and an adjacent property until 1967, when the owner of the adjoining property erected a fence to make this route unavailable. 16 The majority (McTiernan and Mason JJ) held that there was no abandonment of the right of way, notwithstanding non-user for over 40 years. The central proposition emerges from the judgment of Mason J, who observed (at 302) that the mere fact of non-user, even for a long period of time, does not necessarily indicate an intention to abandon (citing Ward v Ward (1852) 7 Ex 838 [155 ER 1189]), since non-user may be referable to the absence of a need to use the right of way and the use of alternative and more attractive means of access (see also McTiernan J at 284). 17 Notwithstanding that principal proposition, courts have from time to time observed that a lengthy period of non-user is material as one element from which the dominant owner's intention to abandon the easement may be inferred: Treweeke, per McTiernan J at 284; Swan v Sinclair [1924] 1 Ch 254, 266 per Pollock MR; R v Chorley (1848) 12 QB 515, 519 per Lord Denman CJ [116 ER 960]. Sometimes courts have attributed a greater significance to a very long period of non-user, saying that if the period of non-user is very long, that fact alone may raise a prima facie presumption of abandonment, throwing upon the person seeking to uphold the right of way the burden of showing that some indication of intention to preserve the right was manifested during the period of non-user: Treweeke, per McTiernan J at 284, citing Halsbury's Laws of England (3rd ed, vol 12,), page 564, paragraph 1228; compare per Walsh J (dissenting) at 288; Crossley & Sons Limited v Lightowler, per Lord Chelmsford LC at 482. 18 Courts have fairly frequently applied the central proposition emerging from Treweeke's case. For example, in Couche v Adams [2002] NSWSC 27 Palmer J held (at paragraphs 27-28) that evidence of non-use by the present owner of the dominant tenement for four years, explained by the fact that he was unaware of the existence of the right of way, and unexplained non-use for the previous 15 years, during which time the right of way was separated by a wall from the dominant tenement, provided no basis for inferring an intention on the part of the owners of the dominant tenement to abandon forever their right to use the right of way, and consequently the right of way had not been extinguished by abandonment. Similarly, in Grill v Hockey the previous owner of the dominant tenement used the land in such a manner that she had no occasion to use the right of carriageway that was under consideration, and it was unnecessary for her successor in title (the plaintiff) to use it because he had alternative means of vehicular access. That being so, evidence of absence of use for a period of about 15 years had, in McLelland J's view, "little probative force" (at 11,424). 19 It is harder to find modern examples of the application of the principles that give significance to non-user for an extended period. In McIntyre v Porter [1983] 2 VR 439 Anderson J considered a right of way permitting the owner of the dominant tenement to pass with horses, carts and wagons and to drive cattle and other beasts. It was granted in 1855, but had not been used except for social visits since 1923. If ever there was a case where an extended period of non-use might have been held to be significant of itself, one might have thought this would be the case. Anderson J found that the right of way had been abandoned, but his decision was not based on the length of the period of non-user, or any presumption or shifting of onus arising from that fact. He took into account (at 442) that the conduct of the plaintiff's predecessors had evidenced an assumption of proprietorship over the land in question in various ways: such as by exclusive and unchallenged occupancy and use, payment of rates for land including the disputed land, the erection of double gates, the nailing up of a small picket gate, and the construction of a new fence without any provision for entry from the defendants' land onto the disputed land. This case suggests that a modern court is unlikely to attribute separate significance to extended non-user of the easement, and will be much more inclined to reach a decision after weighing up all relevant facts, without any presumption or shifting of onus. Alternative access 20 As to the availability of alternative access; Mason J concluded in Treweeke that, although he was left with the general impression that the owner of the dominant tenement and its predecessors did little or nothing over a long period to exercise the rights conferred by the easement, the evidence in its entirety did not justify an inference of abandonment. He remarked (at 303-4): "In my view the non-user and other acts and omissions of the respondent and its predecessors were equally consistent with the existence of an intention not to use the right of way whilst alternative means of access remained available." 21 This suggests that non-user will be neutralised if it appears that satisfactory alternative access is available. However, the question is very much a question of fact. While in some cases (Ward's case is another good example), the existence of more convenient alternative access provides an adequate explanation for non-user of the right of way, in other cases the evidence of alternative access might reinforce the inferred intention to abandon. In McIntyre v Porter, for example, the evidence showed that in light of subdivision, the dominant tenement had acquired a frontage to the street and the right of way had ceased to have any utility. Interference with use 22 As to the significance of obstructions preventing or limiting the use of the easement, in Treweeke McTiernan J (at 280-1) noted that an interference with an easement is actionable only if it is a substantial interference; see also Keefe v Amor [1965] 1 QB 334; and as to the implication of terms as to reasonable user, Zenere v Leate (1980) 1 BPR [97089]. McTiernan J and Mason J both found that the erection of fences was an insignificant expense consistent with retention of the right of way, and although the construction of a swimming pool across part of the right of way was a more substantial matter, the swimming pool occupied only a small section of the right of way and the owner of the dominant tenement objected once it discovered the precise location of the easement (per Mason J at 303). 23 In Grill v Hockey McLelland J found (at 11,424) that some physical obstructions to a right of carriageway were not "of such a substantial and permanent kind as to give rise to a presumed intention that the rights would never be exercised again". The English case, Gotobed v Pridmore [1970] 115 Sol Jo 78, is to similar effect. It was held that a right of way had not been abandoned even though the defendant had cultivated the land during the Second World War and thereafter had erected a barbed wire fence and had used the land for grazing and chickens. The Court noted that it would have been easy to restore the land so as to permit use of the right of way. The law concerning extinguishment under s 89(1)(a) 24 As I have said, s 89(1) of the Conveyancing Act empowers the Court, on the application of any person interested in the servient tenement, to make an order modifying or wholly or partly extinguishing an easement or restrictive covenant, upon being satisfied of certain matters. The defendants as cross-claimants are persons interested in the two servient tenements, Nos 188 and 190 Palmer Street, and they are also entitled to invoke s 89 by virtue of s 89(2), on the basis that proceedings have been instituted against them to enforce the easement. 25 The matters of which the Court must be satisfied before making an order are set out in subparagraphs (a), (b), (b1) and (c) of subsection s 89(1). In the present case the defendants invoke the first and second limbs of subparagraph (a), as well as the second limb of subparagraph (b) (dealt with above). Easement deemed obsolete 26 The first limb of subparagraph (a) requires the Court to be satisfied that by reason of · change in the user of the land having the benefit of the easement; or · change in the character of the neighbourhood; or · other circumstances of the case which the Court may deem material, the easement or restrictive covenant ought to be deemed obsolete. 27 Some earlier cases took the view that the word "obsolete" was to be construed narrowly. In Chatsworth Estates v Fewell [1931] 1 Ch 224, for example, "obsolescence" was said to relate to whether the restrictive covenant before the court was absolutely valueless (see esp at 271-2 per Romer LJ). In other cases, the question of obsolescence was seen to depend upon whether the original purpose of the easement or restrictive covenant could no longer be achieved (for example, Knight v Simmons [1896] 2 Ch 294, 297 per Lindley MR; Guth v Robinson, at 9215 per Powell J). However, in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR [97830], 18,100, Mason P adopted an even broader construction, holding that the word "obsolete" meant either that the object of the easement had become incapable of fulfilment, or that it served no present useful purpose. 28 Even so, this ground is to be applied cautiously. While the section confers a power to abrogate existing rights, the power "is not available for the purpose of expropriating private rights for profit": Durian (Holdings) at 18,100, per Mason P, citing Re Henderson's Conveyance [1940] Ch 835, 846 per Farwell J (where a tendency to erect smaller houses in place of the larger houses used in "more spacious times" was held, on the facts, not to change the residential character of the neighbourhood). 29 Applying these principles, the Court of Appeal held in Durian (Holdings) that a right of way to allow vehicular access from the dominant tenement over the servient tenement to a road (Rickety Street) should be deemed obsolete by virtue of a change in the user of the dominant tenement. The right of way had not been used for over 30 years, and its use had been blocked by fencing and the construction of a car park in 1981. Since at least 1981 the elevation of the dominant tenement had been about 70 centimetres higher than the servient tenements, a drop which made the use of ordinary vehicles impossible. The dominant tenement was originally landlocked, but for some time alternative access to it had been available from another road (Gardeners Road), and access to Rickety Street via the servient tenement had become prohibited by planning restrictions and the attitude of the police and road traffic authorities. In those circumstances the easement had become "unnecessary and irrelevant" (at 18,101 per Mason P). The fact that the owner of the dominant tenement subjectively believed that the right of way retained some value did not provide any basis for rejecting the application, when the objective facts supported the extinguishment of the easement. 30 In Couche v Adams Palmer J rejected a submission that the right of way under consideration, over a residential property in Paddington in Sydney, should be deemed obsolete because of a change in the character of the neighbourhood. The evidence was that there was previously a factory and a shop on the servient tenement, and in 1981 the then owner pulled down the existing structures and erected a residence. The dominant tenements had been used for residential purposes at all relevant times since creation of the right of way. His Honour found that this evidence was insufficient to establish a change in the character of the neighbourhood for the purposes of s 89(1)(a). Reasonable user and practical benefit 31 The second limb of subparagraph (a) requires the Court to be satisfied that the continued existence of the easement would impede the reasonable user of the land subject to the easement, without securing practical benefit to the persons entitled to the easement (or would, unless modified, so impede such user). In Durian (Holdings), Mason P applied this ground (at 18,101), in addition to the first limb of s 89(1)(a). The continued existence of the right of way would not secure any practical benefit to the owner of the dominant tenement because its use was prohibited by planning restrictions and by the attitude of the police and road traffic authorities, and there was alternative access to the dominant tenement from another road. Use of the right of way, were it possible, would interfere with the reasonable user of the servient tenement, which had been improved pursuant to local government development consent, by the construction of retaining walls, carpark kerbing and landscaping. 32 In Guth v Robinson Powell J found (at 9216) that the easement in question may have prevented or impeded the plaintiff's construction of a carport or extensions to her study where she wished, but it did not prevent her building a carport or making alterations on another part of her land, and therefore it could not be said that the continuation of the easement would hinder "to a real and substantial degree" the plaintiff's land being reasonably used, having due regard to its situation, the surrounding property, and the purposes for which the easement was granted. Similarly in Re Henderson's Conveyance, the continued existence of a restrictive covenant, not to erect any building upon part of the respondent's land at the end of the plaintiff's garden, was held not to impede reasonable use or development of the respondent's land, because he could build a house upon the land adjoining the land subject to the restriction, and use the restricted land for his garden. The terms of the right of way 33 By an indenture dated 9 November 1856, registered No 543 book 46, the property now known as No 186 Palmer Street was conveyed to trustees upon trust for the erection of a church and schoolhouse. The indenture purported to create the right of way. The document is not easy to read, and therefore, pursuant to some directions made by me, counsel for the plaintiffs has produced the following typewritten extract: "[Indenture between vendor and purchaser, providing metes and bounds definition of the land conveyed, and thereafter in terms, with the additional terms directed by the Court rendered in italics] "...Together with the free use and enjoyment to and for the said Trustees, their heirs and assigns, and all other (sic) the owner or owner's tenants or occupiers for the time being of the said land hereby released and all other persons whomsoever whom the said Trustees, their heirs and assigns shall authorize and empower, of all such streets or roads as have been set out, made or reserved by the said James John Riley, through, over or upon the land comprised in the said Block, and either with or without horses, cattle, carts or other carriages in common with the other owner or owners tenants or occupiers of the land comprised in the said estate, "And together with the free use and enjoyment to and for the said Trustees, their heirs and assigns and tenants or occupiers for the time being of the said land hereby ajoined (sic) and their agents, servants and work people and all other persons going to or from the said land hereby released or any building thereon of a certain road or lane of the width of four and a half feet, leading from the South East corner of the said land as hereby assured to a lane sixteen feet wide which runs from Palmer Street to Bourke Street in common with the said George Preddy his heirs and assigns "And together also with a right to build on and otherwise use as a party wall without making any payment for the same a certain wall erected by the said George Preddey on the South boundary line of the land hereby assured now forming the northern end of a building fronting Palmer Street "Together with all other ways, rights and appurtenances to the said land hereby ajoined (sic) or belonging of appertaining "And all the estate title and interest of the said George Preddey and Margaret Preddey respectively therein or thereto to have and to hold the said land and hereditaments unto and to the use of the said Trustees their heirs and assigns as upon trust for the erection thereon of a Church under the superintendence of the Synod of Australia in connection with the established Church of Scotland in conformity with the provisions of an Act of the Governor and Legislative Council of New South Wales made and passed in the eighth year of the reign of His Late Majesty King William the Fourth intituled An Act to regulate the temporal affairs of the Presbyterian Church and Chapter connected with the Church of Scotland in the Colony of New South Wales and of a certain other Act of the Governor and Legislative Council made and passed in the seventh year of the reign of His Late Majesty King William the Fourth and numbered thrice so far as the same may apply to the trusts of this Indenture. "And upon trust for the erection thereon of a Schoolhouse under the superintendence of the said Synod of Australia and of other buildings if required in connexion with the said Church and Schoolhouse and for no other purpose whatsoever.…" Construction of instrument creating the right of way 34 The conveyance of 1856 creates, on its face, a right of way in general terms. It confers upon the Trustees, who were the purchasers, "free use and enjoyment" of a certain road or lane four and one half feet wide, from the south-eastern corner of No 186 to the lane which is now O'Brien's Lane. The right of way is conferred upon the Trustees, their heirs, assigns, tenants, occupiers for the time being of the said land, agents, servants, work people and all other persons going to or from the land or any building on it. There is nothing in those words to suggest any restriction on the use of the right of way, such as a restriction to use it only for the purpose of carting nightsoil. 35 The defendants wish to establish that, notwithstanding its general language, the instrument of 1856 should be construed as creating a right of way for the limited purpose of carting nightsoil and for no other purpose. They contend that a right of way expressed in general terms is to be construed having regard not only to the language of the grant, but also the circumstances at the time of the grant. They say that the relevant circumstances include the locus quo over which the easement is granted; the nature of the terminus ad quem; and the purpose for which the easement is to be used as contemplated by the grantor and the grantee at the time of the grant. They add that if there is a change in the dominant tenement, the grantee has no right to use the easement for a new and additional purpose unless the terms of the grant indicate otherwise (citing Gallagher v Rainbow (1994) 179 CLR 624 at 640 per McHugh J; Saggers v Brown (1981) 2 BTR 9329, 9331; Dunnell v Phillips (1982) 2 BTR 9517, 9520; Denton v Phillpott [1990] NSW Conv R 55-545; Finlayson v Campbell (Supreme Court of New South Wales, Young J, unreported, 4 September 1997); Middleton v Arthur [2002] NSWSC 627 at para 13). They say that the orthodox approach is as set out by Jessel MR in Cannon v Villars (1878) 8 Ch D at 821: "Prima facie, the grant of a right of way is the grant of a right of 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 ." [Emphasis added] 36 It is true that the Court should construe the terms of a right of way having regard to the purpose for which it was created. The defendants' difficulty is that there is no relevant ambiguity in the terms of the right of way, and its words envisage use of the passageway for a variety of purposes. This is because use is permitted not only to the occupiers of the dominant tenement who would no doubt have needed nightsoil services in 1856, and to those engaged by them to cart nightsoil, but also more generally to agents, servants, work people and others going to and from the land. This suggests that the right of way was created for the purpose of general ingress and egress. 37 The defendants invite the Court to have regard to the location of the right of way in relation to the buildings constructed on the dominant tenement and the servient tenements, and the location of the entrance of the right of way in O'Brien's Lane. Assuming for the purpose of argument that all these matters are appropriate to be taken into account, nevertheless the passageway might be used, and might have been used in the middle of the 19th century, for a variety of purposes in addition to the carting of nightsoil, such as access for building and other trade purposes and for deliveries. 38 The defendants point out that numbers 188 and 190 Palmer Street are residential terraces, and they submit that it cannot be supposed that the purpose of the grantor and the grantee was to give the general public a right of way to come and go through the backyards of those properties when they wished to visit the Church and Manse. Subject to the qualification that the right of way does not purport to allow use by the "general public", but only "all other persons going to or from the said land" or any building on it, that is precisely the literal effect of the instrument. 39 Finally, the defendants point out that in 1856 the use of the dominant tenement was to be for a Church and Manse (and, one notes, a school), and it was not contemplated that the property would be used for general commercial purposes. In those circumstances, say the defendants, it cannot be supposed that the purpose of the grantor and the grantee was that the Church and Manse might come to be used as commercial premises and that the general public and customers of the business would then use the right of way without restriction. 40 The present case is not one where, as a result of change of use of the dominant tenement, the easement is to be used for a new or additional purpose not contemplated by the terms of the grant. Although the dominant tenement is now partly used for commercial purposes, nothing in the evidence suggests that the right of way (as opposed to the buildings of the dominant tenement) is now to be used for some new or additional purpose. It remains, essentially, a right of footway available to be used for passage, deliveries to the dominant tenement and cartage from the dominant tenement. As I understand the plaintiffs' position, that is the purpose for which they wish to use it. 41 My conclusion is that, upon the proper construction of the instrument of 1856, there is no basis for limiting the use of the right of way to the cartage of nightsoil. The circumstances of creation of the right of way 42 In order to apply the common law of abandonment and the relevant parts of s 89 of the Conveyancing Act, it is necessary to consider the purpose or purposes for which the right of way was created in 1856, as well as its use and non-use during the period from then until now. Not surprisingly, the evidence on these matters is less than conclusive. I have been aided by the tender of some old maps, and also by expert evidence. The account I shall set out is based on that evidence, although needless to say, my findings can only be on the balance of probabilities. 43 The three properties were created by subdivision of part of the Riley Estate. Edward Riley died in 1825. The distribution of his estate was complicated by litigation arising out of conflicting wills. The estate was eventually divided into seven parcels of land which were raffled amongst the heirs. 44 The streets within the Riley Estate were laid out in 1844 and finally proclaimed in 1848. At that time there were rules for the subdivision of land, which had been set out by Governor Darling, but the process of subdivision in East Sydney was complicated by several factors. One was that some of the land was already owned before properly planned subdivision was undertaken. Another was that the early surveys of the area, one prepared by Mr Meehan in 1814, which followed the contours of the land, and another by Mr Mitchell in 1834, which conformed to a grid pattern, were in some ways inconsistent with one another. The result was a somewhat disorderly subdivision. One of the expert witnesses contrasted the subdivision of East Sydney with the more orderly subdivision of central Melbourne, laid out by Mr Hoddle, in which lanes were systematically included behind the main streets (for example, Little Collins Street). 45 A consequence of the relatively disorderly subdivision of East Sydney was that there was no rear access to some of the subdivided lots from public streets or lanes. In the early to mid-nineteenth century, urban housing was generally built in terrace rows without any passageways permitting access from the front street to the rear of the internal properties. Frequently the owners of adjoining lots overcame the problem of lack of rear access by private arrangements, which in some cases were formalised by rights of way. 46 A map prepared in 1854 shows a pair of terrace houses on Nos 188 and 190, and shows No 186 as vacant land. It appears that those are the two terrace houses still standing on Nos 188 and 190. A Presbyterian Church ("the Church") was built on No 186 in 1856. The building is still there, and was viewed by the Court. It is an airy and dignified building, designed by Edmund Blackett. The front entrance is to Palmer Street. The northern side of the church building runs along Stanley Street without any entrance directly to the Church. There is another small building adjoining the rear of the Church and the western wall of the neighbouring house in Stanley Street, constructed at the same time and now called "The Old Chapel". The entrance is from Stanley Street, and there is internal access from the Old Chapel to the Church. On the Stanley Street side of the Church one of the delicately carved sandstone blocks displays the year 1856. 47 At some time after completion of the Church, the gap between the Church and No 188 was filled by the construction of another building, now called "The Old Manse". It is sometimes referred to as No 186A Palmer Street. While the Church and the adjoining Old Chapel occupy the whole of No 186 along the Stanley Street side and the Church and the Old Manse occupy the whole of number 186/186A along the Palmer Street side, there is an open area in the south-eastern quarter of the property, behind the Old Manse. This open area appears to have served as a backyard for the Old Manse and also as an outdoor area accessible from the rear door of the Old Chapel. It contains a toilet block. 48 The toilet block presently on the property is an oblong brick building, the eastern (shorter) side of which adjoins the stone wall at the rear of No 186. The entrance to the toilets is on the northern side of the toilet block, approximately facing the rear entrance to the Old Chapel. The southern side of the toilet block is quite close to the southern boundary of No 186, but there is enough room to walk between that side of the toilet block and the boundary. A person walking north along the right of way (if it were possible to do so) would have to turn left when reaching the toilet block, to walk around it and proceed to the open area of No 186. There are three old stone steps in the area between the southern wall of the toilet block and the southern boundary of No 186, which indicate that for a time after the construction of the toilet block, people used the passageway. 49 It appears likely that there was a privy at the rear of No 186 from the time of completion of the Church and the Old Chapel, for use by churchgoers and their servants, and (later) by the occupants of the Old Manse. It is not clear whether the original privy was on the site of the present toilet block. Some maps and survey field notes in the 1880s suggest that an earlier structure (abutting the southern boundary of No 186 just to the west of the right of way) may have been replaced by the existing structure at about that time. 50 The right of way was created at the time of construction of the Church and the Old Chapel. There is no direct evidence with respect to the negotiation of the right of way, and no specific evidence of the purpose of the parties to the indenture which created it, other than the words of the indenture itself. The defendants submitted that I should infer from the surrounding circumstances that the purpose of the right of way was for the removal of nightsoil. The plaintiffs, drawing attention to the unqualified language of the indenture, submitted that the purpose of the right of way was not confined to removing nightsoil, and extended to passing and re-passing along the passageway defined by the right of way, for any purpose. 51 On the state of the evidence, I am unable to conclude that the purpose of the right of way, when it was created, or even the principal purpose, was for the removal of nightsoil. The defendants invited me to infer that this was the purpose or principal purpose by the layout of the rear of No 186. As I have said, a person using the right of way, walking north, would be confronted by the toilet block upon entering No 186. It was submitted that churchgoers, especially female churchgoers, would be discouraged from approaching the Church through the right of way, because it would be necessary to walk around the toilet block. 52 There are two problems with this submission. First, it has not been shown that the original toilet block was located where the toilet block now is. If it was to the west of the right of way, people using the right of way would have been less inconvenienced by it. Secondly, while use of the right of way for some purposes would be discouraged by the toilet block, use for other purposes would be unaffected (for example, for coal and ice deliveries and the cartage of building and garden materials). 53 The plaintiff and the defendants relied on expert evidence going to the purpose of the right of way. Professor Toon, who was until recently Associate Professor of Urban and Regional Planning at The University of Sydney, gave evidence for the defendants. He said it was "certain that the system of private passageways was developed solely for the purpose of removing nightsoil prior to the connection to reticulated water and sewerage becoming obligatory". Dr Fitzgerald, who gave evidence on behalf of the plaintiffs, is the City Historian for the City of Sydney. She strongly disagreed with Professor Toon. Her opinion was that lanes such as the right of way in the present case "would almost certainly have been used for the regular delivery of coal and ice for household use well into the 20th century, as well as for the removal of household rubbish and building materials". Additionally, given the social status of a Presbyterian minister and the likely users of the Manse, it is probable, in her view, that household deliveries to the rear would have been encouraged. She said that during the early years of the Church's history, when it had a thriving congregation, well-heeled worshippers would arrive by private carriage, and the drivers and grooms who waited for them outside would have access to toilets from the rear right of way. 54 I prefer the evidence of Dr Fitzgerald to Professor Toon's evidence. Professor Toon's report does not set out specific reasoning and historical evidence to support his categorical conclusion that the right of way was developed solely for the purpose of removing nightsoil. His evidence gave the impression that he did not undertake any substantial research specifically for the purposes of this litigation, preferring instead to speak in generalities that were occasionally imprecise (for example, reference to "urban house forms at the beginning of the nineteenth century", when, as Dr Fitzgerald pointed out, there was no such housing in Sydney). On the other hand, Dr Fitzgerald specifically studied material relating to the Palmer Street Presbyterian Church, and supported her views by reference to some historical records. Her conclusion as to the use of the right of way was based on inference rather than direct evidence, but I find it plausible. For example, it seems to me unlikely, after construction of the Old Manse, that coal and ice would have been delivered through the house rather than to the rear of the house by the right of way, and even more unlikely that household garbage and building materials would be taken through the house if the right of way were available. 55 Inferences as to the likely use of the right of way after construction of the Church (and, a fortiori, after construction at a later stage of the Old Manse) do not establish that the right of way was created for any limited purpose or purposes. Nevertheless, evidence about the common use of such lanes in 1856, and inferences drawn by an expert historian as to the likely use of the right of way in question after it came into existence, provide some guidance as to the purpose of the right of way when it was created, in the absence of more direct evidence. Here (as I have said) there is nothing in the words of the indenture to suggest that the use of the right of way should be limited to the removal of nightsoil. On the contrary, as Dr Fitzgerald points out, the indenture gives "free use" of the right of way without any expressed restriction. 56 The defendants submitted that I should prefer Professor Toon's evidence to the evidence of Dr Fitzgerald, because Dr Fitzgerald makes assumptions in her report that are inconsistent with the right of way having fallen into disuse by the early 1940s, and proceeds on the mistaken assumption that the right of way was still in use up to 1969. It is true that in cross-examination, Dr Fitzgerald agreed with the suggestion that her assumptions about usage in the 1850s applied through to the 1940s, with the provisoes that the intensity of use would have gone up and down depending on the intensity of use of the Church and the Manse, and that usage would have declined when it ceased to be necessary to empty privies, and would have declined again when coal deliveries stopped. It seems to me that this criticism of Dr Fitzgerald's evidence does not undermine her expert view about use of the right of way in the 19th century. Her evidence establishes that the right of way was, in all probability, used for multiple purposes in the 19th century, not only for the cartage of nightsoil, whether or not it fell into disuse in the 20th century. 57 I have concluded that the defendants' contention, that the purpose of the right of way was for the removal of nightsoil, has not been made out. The expert evidence does not enable me to identify any limited purpose. My conclusion is that the right of way was created for a variety of purposes including access to the Church and Manse, cartage of nightsoil, the making of deliveries, the removal of waste, and for use by tradesmen. User of the right of way, to 1991 58 The Church and the Old Manse were connected to the sewer on 14 May 1902. It is probable that Nos 188 and 190 Palmer Street were connected at about the same time. The defendants contend that once the sewer was connected, there was no longer any need for the right of way, and therefore at some time (not precisely ascertainable) after 1902 and well before 1994 when the plaintiffs became the owners of No 186, the right of way fell into disuse and was abandoned. Given my finding as to the purposes of the right of way, it would be wrong for me to infer that in 1902 the right of way was in fact used only to remove nightsoil. On the contrary, in the absence of specific evidence as to use, the natural presumption is that the right of way was used for the purposes for which it was created, that is to say for more general access. 59 Mr Brian Frawley, a surveyor with expertise in the administration of the Sydney sewerage system, reviewed some plans made in the 1880s, 1895, 1939 and 1953, as well as some undated plans. He gave evidence that until connection with the sewer main, the properties would undoubtedly have been provided with a nightsoil service through the right of way. That seems to be beyond contest, but is not inconsistent with the proposition that the right of way may also have had other uses. In 1887 a plan showed the right of way as being fenced on both sides but open at the O'Brien's Lane end, but he was unable to say how long this fencing remained. He speculated, inconclusively, that the plan compiled in 1939 might have been to investigate the right of way. I find, however, that I am unable to draw any conclusion from this part of his evidence. 60 Specific evidence as to the condition and use of the right of way commences much later, in the mid 1940s. Peter Zadelis lived in No 190 Palmer Street with his parents from 1941 to 1949 (when he was about nine years old). His parents retained the property until 1974, and he returned to it from time to time with his father. He inherited No 190, and sold it in about 1984. He recalls that he sometimes played with other children in a passage about four feet wide running along the rear of No 190 and No 188. The passage was open at O'Brien's Lane and stopped at the boundary between No 188 and the Church. He said a corrugated iron fence was built on the boundary, closing off the passage. It was weathered and appeared to him to have been there for a long time. There was no back gate from No 190 into the passage, and so his access to it was by O'Brien's Lane. He attended the Church but always entered from Palmer Street, never from the passage. His parents did not use the passage to take out the garbage. Later, during the period 1949 to 1984, Mr Zadelis sometimes saw homeless people sleeping in the passageway. 61 This evidence, which I accept, indicates that the right of way was not used by the owner of the dominant or servient tenements, except as a place for children to play and later as a place for vagrants to sleep, from at least 1941 (and probably much earlier) until 1984. Access to it from all three properties was blocked by fencing. But there was nevertheless an identifiable passageway, not obstructed, which could have been accessed from No 186 simply by removing corrugated iron fencing. The corrugated iron fence was not a substantial construction, and acquiescence in its existence on the part of the owner of the dominant tenement would not, in my view, of itself amount to abandonment of the right of way. 62 The Rev Marjorie Winter, now a Minister of the Uniting Church in Australia, was an active member of the congregation of the Church at No 186 Palmer Street from about 1957 to 1970, and attended the Church at least twice a week. Members of the congregation used the Palmer Street entrance to the Church. The Manse was tenanted. The backyard of the Manse was run down, but there was a dividing fence built along the entire boundary from Palmer Street to the rear of the Church property. Ms Winter gave evidence that she did not recall any lane or passage running from the Church to O'Brien's Lane, nor any gate in the dividing fence between the Church and No 188. 63 Ms Winter moved away from Sydney from 1970 until about 1989, and when she returned to Sydney she was the organist for the Palmer Street Church for a five-year period. When she returned in 1989 she noticed that the Church grounds were well-kept and maintained, but she did not notice any change to their layout. Her evidence is that there was no access to any lane or passage running from the Church to O'Brien's Lane. Members of the congregation entered the Church by Palmer Street or by Stanley Street. Since the congregation was small, services were held in the Old Chapel and the main body of the Church was leased to other organisations and not used for religious services. Later, she says, these organisations left and services were held in the main body of the Church. This evidence tends to confirm that during the period from 1957 until 1989 the right of way was not used by the Church. 64 The Rev Miriam Howard provided an affidavit and was cross-examined. She was the Minister at the Church and lived at the Manse from 1987 until 1993, moving in shortly after the Pitt Street Parish of the Uniting Church of Australia acquired the Church and the Old Manse. She said that a corrugated iron fence blocked the boundary of the Church and No 188 at the right of way, while she was in occupation. The boundary between No 188 and the Manse was marked by a "mixed" fence consisting of wire, palings and corrugated iron. The corrugated iron section began near the steps beside the outside toilets and ran across the entrance to the passage and to the end of the Church property. 65 Her next-door neighbours at No 188 were Mr and Mrs Foster, both of whom have given evidence. Mr Foster said that when he first inspected No 188 in 1978, it had been used as a boarding house. The Old Manse was vacant. He saw the remains of a shed and fence in the backyard of the property, and noticed a narrow passage between the fence and the stone wall which abutted the rear boundary. He confirmed that the northern end of the passage was closed by a corrugated iron fence on the boundary between No 186 and No 188, which appeared to have been in place for a long time. He said that the passageway was filthy and littered with rubble, and was impassable. 66 After he and his then wife moved into No 188, he installed a gate at the O'Brien's Lane end blocking the entrance to the passageway. The gate could only be opened from inside the passage, and only he and his wife used the passage. Later he installed a lock on the gate, which he kept. He did not give the key to the owners or occupants of No 190, the Old Manse or the Church. He dismantled and removed the remains of the old shed and fence at the rear of No 188, and incorporated the passageway into the backyard of No 188. He planted trees and plants on the site of the passageway, and used the passageway to store building materials and architectural items. 67 Mr Foster said that he received no complaints or objections from the owners or occupiers of No 186 or 188 at any time. Ms Howard gave evidence confirming that she did not object to what Mr and Mrs Foster had done to the passageway, and said she approved of the outlook over their garden. The trees and plants remain at the rear of No 188, but the garden does not completely obstruct the right of way, the use of which could be restored without substantial work, although the trees would be a partial obstacle unless they were removed. 68 Mr Philip Boulten was a member of the Parish from 1988 to 1995 and of the Property and Finance Committee from 1991 to 1995. He gave evidence that the only point of entry and exit to the right of way was by a gate at the O'Brien's Lane end, which was locked. He said he did not know who had the keys. He said a corrugated iron fence was constructed on the boundary between No 186 and No 188 across the site of the right of way, and a dilapidated paling fence was constructed on the remainder of the boundary. He said he never used the right of way, and to his knowledge neither the Church nor its users ever used it or had any plans to use it. 69 The second defendant acquired title to No 190 partly by an old system conveyance registered in February 1985. He gave evidence that when he first inspected the property, he observed a passageway by peering over the paling fence at the rear of No 190, and he noted that the only point of entry to or exit from it was by a stout gate at the O'Brien's Lane end. The property was converted to Torrens title in 1994, the current computer folio reference being 11/834639, which records the burden of the right of way. Prior to settlement of the conveyance, the second defendant's solicitors obtained a survey from Mr T Starr, dated 7 November 1984. The survey shows the right of way and states that the land is subject to it. 70 The first defendants acquired title by virtue of a transfer of qualified title registered in October 1989. An application for conversion of the title to No 188 from old system to Torrens title was filed with the Land Titles Office in March 1989. The contract for the purchase of the property contained a special condition by which the purchasers acknowledged that the property was currently being converted from old system to qualified title, and would not raise objections or acquisitions or claim compensation in respect of that process. There was also a special condition stating that the vendor did not have a current survey certificate for the property and that the purchaser would not be entitled to require that she obtain one. The draft contract annexed a plan lodged with the Land Titles Office which appears to show a "right of footway of var width referred to in" a specified book and number in the register. After they acquired the property, the first defendants commissioned a survey certificate, which was provided to them by letter dated 13 July 1989. The survey, by Turnidge Naughton & Kimber Pty Ltd, notes a right of way affecting the subject property, of variable width of approximately 1.3 metres. 71 Mr Michie gave evidence that the corrugated iron fencing between the Church and No 188 at the site of the right of way remained in place, and that building debris had been piled up between the toilets and the commencement of the right of way, which was practically impassable. He reinforced the gate at the O'Brien's Lane end of the right of way to deter thieves. After he and his wife moved into No 188, they removed most of the building materials from their backyard and the passage. They and their children used the passage and Ms Howard did not object. No one else used the passage. It was not a shortcut to the Church, the Manse or anywhere else. 72 In 1992 a roller shutting gate was installed across the right of way at O'Brien's Lane, in the circumstances described below. Mr Michie gave evidence that he kept the wooden gate and supporting posts that had been at the O'Brien's Lane end of the right of way until that time, and he used them to replace the corrugated iron fence at the northern end of the right of way on the boundary between No 188 and No 186. He said that the gate and posts were used as part of the fence and not to provide access to the Church and the Old Manse. 73 Mr Long gave evidence that he inspected the property at No 188 Palmer Street in October 1989, considering that he might purchase it. He said he observed that the right of way was free of plants or structures interfering with its use, and that there was a paling fence gate at the northern end of the right of way permitting access to the Church property. He said that he inspected the properties again in 1994, before he exchanged contracts for the purchase of No 186, and observed that the paling fence gate was still there. After exchange of contracts and before settlement he again inspected the property, and found that the paling fence gate on the shared boundary had been removed and a paling fence had been erected in its place. Shortly after settlement, he said, he observed that the level of No 188 over the right of way had been raised, and garden beds, trees and shrubbery had been planted. 74 Mr Long's evidence is inconsistent with other evidence in some respects, and in those respects I prefer the other evidence. Specifically, I accept as plausible Mr Michie's evidence that he replaced the corrugated iron fencing at the northern end of the right of way with the old gate and posts, to provide replacement fencing rather than to allow access between No 188 and No 186. That must have happened in 1992, when the roller shutter door and wall were installed at the O'Brien's Lane end. The evidence of Mr and Mrs Foster and Ms Howard is to the effect that a garden was created and trees and shrubs were planted by the Foster's, who left in November 1988, and so they must have been there when Mr Long inspected No 188 in October 1989, although according to Mr Michie, the garden bed was raised in 1991. That is consistent with the other evidence and I accept it. It is probable that Mr Long's recollection is simply faulty in this respect. Mr and Mrs Foster gave evidence to the effect that the corrugated iron fence at the northern end of the right of way was there until they left in November 1988, and Ms Howard said that the corrugated iron fence remained in place later than 1989 and that there was no gateway between No 186 and 188 (the latter proposition being confirmed by Ms Winter). It seems to me probable that Mr Long saw the old gate and posts at some time after they were put in place at the northern end of the right of way by Mr Michie, and he may have wrongly assumed that the gate was usable. It was not there, in my opinion, in 1989. Management of the Parish, in the early 1990s 75 Ms Howard gave some evidence on the question of authority, but it was very vague. My findings on this matter are based primarily upon the documentation that is in evidence. 76 The Palmer Street Church was part of a Uniting Church parish, which included also the Pitt Street Church in the City. There was a Parish Council, which took decisions on the advice of a Parish Property and Finance Committee, which appears also to have had some decision-making authority. There was also a Darlinghurst Ministry Group, which appears to have been purely advisory, members of which carried forward its views to the Property and Finance Committee and the Parish Council. The Parish had an Administrator, who reported to the Committee and the Parish Council, and he may also have had some limited authority. It appears that any financial authority possessed by the Minister of the Palmer Street Church was very limited, if it existed at all. 77 Mr Michie was a member of the Property and Finance Committee from 1990, shortly after he and his wife moved to 188 Palmer Street, until August 1994, when he resigned following the sale of the Palmer Street Church and the Old Manse. He was also a member of the Darlinghurst Ministry Group during that period, and he was an active member of the Palmer Street Church, having at one stage administrative responsibility during the Minister's absence. Relevant Parish decisions 78 During the period from 1988 to 1995, the Church was used for a variety of purposes, including worship on Sundays, community breakfasts on some weekdays, and related Church activities. 79 In 1990 the Darlinghurst Ministry Group explored ways of improving the security for the backyard of the Old Manse. The minutes of the Group's meeting on 17 March 1990 record that "consideration was given to providing a fence to isolate the toilet area from the house yard and prevent access to neighbours' yards". 80 In 1991 Mr Michie proposed to the Church the construction of a fence between No 188 and No 186. He said he did so because the paling fence was in a poor state of repair. That proposal was considered at a meeting of the Finance and Property Committee held on 10 July 1991. Under the heading "Darlinghurst", the minutes say: "7.2 A plan of the proposed fence to be erected at no cost to the church was presented by Chris Michie. The possible effect on the right of way to the side lane was discussed. It was agreed that the proposed brick wall section be approved with the inclusion of a locked gate to the right of way in order to protect the interests of the church in the future." 81 Both Mr Boulten and Ms Howard, who were present at the meeting, gave evidence to the effect that there were in fact no plans to use the right of way at that time. 82 The Parish Administrator reported to the Parish Council in July 1991 on various matters including "Palmer Street Church Restoration", in which he said: "Chris Michie has requested approval to fence off the church toilets from the residence at no cost to the church. Approval with thanks is recommended." The Finance and Property Committee met again on 14 August 1991. There was discussion of "Darlinghurst Restoration", the minute of which records: "Parish to meet cost of gate in brick fence". 83 Mr Michie gave evidence that he used bricks left at No 188 to construct a wall to replace dilapidated paling fencing between No 186 and 188, after this permission was obtained. He said that the wall was completed in about August 1991. In 1994, when the Uniting Church agreed to sell the Church and the Old Manse to the plaintiffs, the first defendants erected a fence, which remains in place, blocking access to the right of way from the plaintiffs' land. The proposal for the erection of this fence was set out in a letter dated 6 April 1994, written by the first defendants to the chairman of the Finance and Property Committee. There was a meeting of the Finance and Property Committee on the same day. Under the heading "Correspondence", the minutes recorded the following: "5.5 Chris and Lindsay Michie asked for the Parish to pay half the cost of a paling fence to separate their house from the Palmer Street property. The Michie's will install a boxed lattice fence but will pay the additional cost over a paling fence quote. Agreed to pay half the cost of the fence." That decision was duly implemented, and the fence was constructed. 84 At about the same time the Uniting Church decided that the Palmer Street Church and the Old Manse would be sold. A survey of No 186 Palmer Street was prepared by RS Lovegrove Oxley & Partners dated 6 December 1993. It does not show the right of way to O'Brien's Lane. 85 A sale was negotiated to the plaintiffs and Richard Ponting, but eventually only the plaintiffs were the purchasers. The Uniting Church Property Trust contracted to sell No 186 Palmer Street to the plaintiffs by a contract dated 6 July 1994, for a purchase price of $1.4 million. The title to the property was expressed to be subject to a limitation under s 28T(4) of the Real Property Act, and the contract provided that the purchasers would not object to that limitation and would lodge a plan of subdivision and do all matters necessary for cancellation of the limitation. The plans annexed to the contract showed the right of footway over No 188 and No 190, although the contract also annexed a copy of the Lovegrove Oxley survey which, as I have noted, does not appear to show the right of way. 86 Deposited Plan 842716, registered on 4 October 1994, apparently in connection with the conversion of No 186 to Torrens title, shows the right of way, describing it as "right of footway (vide Bk 3757 No 313)". Deposited Plan No 834639 in respect of 188 and 190 shows the right of way, describing it as a "right of footway", referring to Book 1883 No 645 as regards No 188 Palmer Street, and Book and 1902 No 409 as regards No 190 Palmer Street. The defendants' parking arrangements, and installation of the roller shutter door 87 In about September 1989 the first defendants negotiated with the second defendant for the second defendant to grant them rights which would give them off-street parking for their car. Subsequently they exchanged correspondence about the legal and building aspects of establishment of the rights, including the installation of a roller door that would block the end of the right of way at O'Brien's Lane, replacing the existing locked gate. In a letter to the first defendants dated 6 February 1992, the second defendant said: "I note also that there have been no objections raised from anyone who might be entitled to use the old right of way. This right of way has effectively fallen into disuse, in any event." 88 Apparently negotiations for the easement took some time, and were finalised only in 1992. Eventually development approval was obtained, an easement was registered to give the owners of No 188 access over No 190 for parking, and a wall and roller shutter door were installed at the southeastern end of No 190. The evidence is that the Council notified the owners of the affected land (apparently including No 186), and no objection was made to the Council. 89 Ms Howard gave evidence that she was aware that in 1991 or 1992 the owners of No 188 and No 190 lodged a development application for approval to remove the gate at the O'Brien's Lane end of the passage and replace it with a permanent wall and roller shutter, which would provide motor vehicle access to those two properties. She said that, although the proposed development occupied part of the right of way, she did not object to it, and to her knowledge the Uniting Church did not object. Her evidence was that, to her knowledge, the Uniting Church never objected to the various owners of No 188 exclusively using the passage. The plaintiffs' development applications 90 The plaintiffs lodged a development application in respect of No 186 Palmer Street with South Sydney City Council in 1995, proposing that the buildings be used as a "function centre" and offices. Part of the proposal was that garbage from the function centre be taken along the right of way and deposited for collection in O'Brien's Lane. When the application was notified to the defendants, they strenuously objected to it. The first defendants wrote a 15-page letter to the Council dated 15 August 1995. Amongst the objections raised in the letter was the contention that there was no "rear-lane access" as suggested in the application, and that it would be unacceptable for garbage to be accumulated and collected in O'Brien's Lane, for reasons of noise, health and amenity. 91 There was also substantial correspondence, not all in evidence, between the Council and the second defendant, including a letter by the second defendant dated 10 August 1995, in which the second defendant asserted that the right of way was created solely for the purpose of collection of nightsoil and had been abandoned after the installation of sewerage in 1902. 92 It appears that this development application was withdrawn, but since 1994, six development applications have been lodged with the Council. An application to use the Church as a showroom was refused, as was an application to use the Old Manse as an office and residence. An application to use the Old Chapel as a real estate office was approved, and an application to use the Church building as a church was approved subject to conditions. An application to subdivide the property is pending. 93 In response to one of the applications, made in the year 2000, the first defendants wrote to the Council on 7 March 2000 objecting to various aspects of the application. One of the points they made related to reference in the application to a "right of footway". In their letter of objection the first defendants asserted that no right of footway had existed for many years. The second defendant wrote a letter to the Council dated 9 March 2000, contending at length that the right of way was purely for the removal of nightsoil and had been abandoned either in 1902 when sewerage was connected, or through non-user for almost 100 years, and he contended that the failure on the part of the owners of No 186 to object in 1991/2 when the roller shutter door was installed at O'Brien's Lane to obstruct the old right of way gave rise to an equitable estoppel. 94 The Church is currently used for the purposes of worship, and the Old Manse is leased to commercial tenants. The Old Chapel is used for commercial purposes. Mr Long has given evidence that it will be necessary, in conjunction with use of the premises as a Church, for there to be a means of exit from the rear of the buildings with designated fire exits and exit signs. If the right of way is not available, there will be no means of immediate egress onto a public street. He has also expressed the view that recurrent maintenance is needed on No 186, including maintenance of a large mature tree at the rear of the property, work that is rendered more difficult in the absence of access by the right of way. Additionally, any refuse or other waste from the rear of No 186 must be disposed of through the Old Chapel for collection by the Council in Stanley Street, in the absence of egress by the right of way. For these reasons, he contends that the right of way has a continuing utility. The plaintiffs' demands for access to the right of way 95 On 23 July 1997 the solicitors then acting for the plaintiffs wrote to the first defendants referring to the right of way and asserting that part of the right of way had been obstructed. The letter said that the plaintiffs would be continuing to use the right of way and requested the first defendants to remove the impediments installed across it, or alternatively to provide Mr and Mrs Long with appropriate keys. The impediments were not specified. Mr and Mrs Michie replied on 11 August 1997, asserting that the right of way had been abandoned many years earlier. 96 The plaintiffs' present solicitors wrote substantially identical letters to the first and second defendants on 23 December 1999, asserting that a roller door had been constructed in contravention of the plaintiffs' rights, having the effect of denying the plaintiffs' access to the rear of their properties. The letter requested removal of the roller door and also requested that the plaintiffs' rights not be impeded by the parking of motor vehicles. The institution of proceedings was threatened. The first defendants replied on 30 December 1999 affirming the position taken in earlier correspondence and denying that there was a walkway at the rear of their property. There was further lengthy correspondence between Mr and Mrs Michie and the plaintiffs' solicitors, including a letter by Mr and Mrs Michie dated 14 April 2000 and the reply by the solicitors dated 12 May 2000, serving only to state the positions of the parties. Findings as to abandonment 97 It appears to me to be plain that the right of way was used for the cartage of nightsoil until the sewer was connected to No 186 in the early 20th century. According to the expert evidence that I prefer, it may also have been used for other purposes of access to and egress from No 186. The use of the right of way for the cartage of nightsoil ended early in the 20th century. By 1941, and probably well before that date, the right of way was not used by the owner of the dominant tenement for any purpose. It is impossible, on the evidence, to say when the right of way ceased to be used, but from at least 1941 until the mid-1980s it was defined by fencing at the rear of Nos 188 and 190, and by a corrugated iron fence at its northern end. 98 That, it seems to me, amounts to no more than evidence of non-user over an extensive period. It appears that the right of way contained rubble and rubbish but it was passable, and presumably could have been cleaned without any great expense. During the whole of the period of non-user, there was alternative access to No 186 through the front entrances in Palmer Street and Stanley Street. Evidence of alternative access arrangements has been regarded as significant in some cases, including Treweeke. Here, while I bear in mind what was said on the subject in McIntyre v Porter, it seems to me that the evidence of alternative access points slightly in favour of the view that there was no abandonment. It is a little more plausible to say that the right of way was not used because there was satisfactory alternative access, than to say that the right of way was not used because it was unnecessary for any purpose. This is because, on the evidence, it might still have been used up until the 1940s and beyond for deliveries if the alternative access had been less satisfactory. 99 I conclude that there was no abandonment of the right of way up until 1978 (when the Foster's arrived at No 188), notwithstanding the extensive period of non-use. During the period from 1978 to 1991 the O'Brien's Lane entrance to the right of way was blocked off and the owner of the dominant tenement was not given a key to the gate. The owner of No 188 used the whole of the right of way for storing building and architectural materials, and he constructed a garden and planted trees and shrubs. It seems to me that these impediments to the use of the right of way were not sufficiently substantial, in light of the authorities, to lead to any inference about abandonment. Although there is no specific evidence on the subject, it is unlikely that the cost of removing the obstacles to use of the passageway would have been substantial. 100 In contending that any abandonment of the right of way occurred during the period from 1978 to 1991, the defendants face a difficulty because of the nature of the owner of the dominant tenement. There is no evidence as to the authority structure of the Presbyterian Church, the owner until 1986, but the evidence indicates that the Minister of the Palmer Street Church for the Uniting Church of Australia, Ms Howard, had no authority to release or abandon the right of way. In the end, however, this difficulty would not be fatal, in my view, if the defendants could point to satisfactory evidence of abandonment. This is because there is evidence of the operations of the Property and Finance Committee, and of the state of knowledge not only of Ms Howard and also of Mr Boulten, a member of the Committee. 101 The real difficulty for the defendants, in contending for abandonment in the period 1978 to 1991, is that the evidence points to no more than continued non-user, supplemented during that time by the creation of impediments to use of the right of way which were nevertheless reversible. My conclusion is that during this period, the right of way was not abandoned. 102 During 1991-1992 the defendants constructed a more substantial impediment to the use of the right of way, namely the roller shutter door at the O'Brien's Lane end. However, that impediment was not such as to prevent use of the right of way, for the right of way could readily be used, notwithstanding the roller shuttered door, if the owner of the dominant tenement was provided with the means of operating it (assuming, of course, that the remainder of the right of way was otherwise rendered passable). Moreover, the resolution of the Property and Finance Committee of 10 July 1991 stands as an obstacle to any argument of abandonment after that time. The resolution specifically acknowledges an intention, on the part of the Committee, to preserve whatever rights the Church may have had to the right of way after construction of the proposed new wall. 103 My conclusion, therefore, is that the right of way was not abandoned in 1991-1992, even though the northern and southern ends of it remained blocked and the owner of the dominant tenement had no access to the right of way through the southern end. 104 Nothing that happened after 1992 could be regarded as an abandonment of the right of way by the owner of the dominant tenement. The plaintiffs became the owners in 1994, and they have subsequently sought to rely on the right of way in development applications, and they have eventually asserted an entitlement to the use of it, by the letters written by their solicitors. Findings on s 89(1)(a) 105 In terms of the first limb of s 89(1)(a), the defendants do not rely on any evidence of change in the character of the neighbourhood, and in my view there are no "other circumstances" for the purposes of the limb. The question is whether there is a change in the user of the land having the benefit of the right of way, which would lead the Court to conclude that the right of way ought to be deemed obsolete. The evidence shows that although the Church is still used for the purposes of worship, the Old Chapel and the Old Manse are used for commercial as well as (in the case of the Manse) residential purposes. The plaintiffs' development proposals have contemplated that the Church may also be put to commercial uses. 106 Assuming, for the purposes of argument, that the use of No 186 has changed to a predominantly commercial use, should the Court conclude that the right of way ought to be deemed obsolete? In my view a negative answer should be given to that question. This is because of my findings that the right of way was not created solely for purposes that have become obsolete, and is still capable of being used for some of the purposes for which it was used, in all likelihood, after its creation in 1856. Specifically, Mr Long has given evidence of the ways in which he would like to use the right of way, and it seems to me those usages are consistent with some of the usages to which the right of way was put from the early days. In their character, those usages of the property in its commercial phase are not essentially different from the usages for which the right of way was available while the property was a Church and Manse. They include such matters as the removal of waste and access for deliveries. Moreover, the need for the owners of the dominant tenement to comply with modern fire safety regulations points to the conclusion that the right of way is anything but obsolete. 107 As to the second limb of s 89(1)(a), my view is that the reasonable user of No 188 and No 190 would not be impeded by restoration of use of the right of way. It is relevant that the right of way is over only a small strip of land at the rear of those properties. Its restoration to use would require some changes to the gardens and shrubs, and would also require that the plaintiffs be given access to the right of way from O'Brien's Lane, something that might well be achieved by providing them with a key or other means of opening and closing the roller shutter door. If the defendants are concerned about compromising the security of their premises, it will of course be open to them to build fencing along the western edge of the right of way, in that respect restoring the right of way to the condition in which it existed until the 1980s. Nothing in this suggests that use of the right of way would impede the reasonable user of No 188 or No 190. 108 Conversely, restoration of use of the right of way would clearly secure practical benefits to the plaintiffs, having regard to the evidence of Mr Long, which was not relevantly challenged. They would be able to use the right of way in the manner which he outlined in his affidavit made on 11 February 2002. Section 88 109 The defendants' contention based on s 88 of the Conveyancing Act did not figure prominently in submissions, and I am able to deal with it in a summary way. 110 Section 88 provides that, except to the extent that Division 4 of Part 6 otherwise provides, an easement expressed to be created by an instrument coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 is not enforceable against a person interested in the land claimed to be subject to it, not being a party to its creation, unless the instrument clearly indicates certain listed matters. 111 The easement relied upon by the plaintiff was created in 1856. However, further assurances of the servient tenements took place, in which the rights created in 1856 were reserved for the benefit of the dominant tenements. Those further assurances were as follows: (a) as to No 188 Palmer Street, on 2 December 1940 old system conveyance No 645 in book 1883 was registered, burdening that land by reserving such rights as may exist for the purposes of entrance to adjoining properties over the strip of land included in the terms of the conveyance; (b) as to No 190 Palmer Street, on 8 October 1941 old system conveyance No 409 in book 1902 was registered, burdening that land by reserving such rights as may exist for the purpose of entrance to adjoining properties over the strip of land included in the terms of the conveyance. 112 These two conveyances are significant to the facts in that, when the titles to Nos 188 and 190 were eventually converted to the Torrens system, the certificates of title noted the right of way and referred, respectively, to these two old system instruments. However, in my opinion there is no proper basis for applying s 88 to either of them. On the face of them, these conveyances merely reserve such rights as may exist and are not conveyances which purport to create rights of way. To put the point in the words of the section, there is no "easement expressed to be created" by either instrument. Conclusion 113 I have decided that the right of way established by the instrument of 1856 has not been extinguished by abandonment, and ought not to be extinguished on that ground under s 89(1)(b), and also that it ought not to be extinguished under either limb of s 89(1)(a). In my opinion the plaintiffs are entitled to the declarations sought in their statement of claim, affirming their entitlement under the right of way, and orders for the removal of obstructions and the reinstatement of the right of way, as well as an injunction to restrain the defendants from interfering with it. The defendants' cross-claim should be dismissed. 114 It will be necessary to give the parties further opportunity to make submissions with respect to the plaintiffs' claim for damages, and as to the form of the Court's orders, and the question of costs. I shall direct the plaintiffs to prepare draft short minutes of orders and stand the proceedings over for further argument on those matters. ********** Last Modified: 04/08/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.