Week 9 – Easements

What are the four characteristics of an easement?

- Four essential characteristics: Considered in Re Ellenborough Park:

1) Dominant and servient tenement

- Is it something that the owner of the dominant tenement will need/want for the enjoyment of
that land?
- It must be for the benefit of another piece of land, the dominant tenement.
- section 88A CA: ‘easements in gross’:
- Sydney Water or Telstra can have an easement without having dominant tenement land.

2) Accommodation of the dominant tenement

- There must be a connection between the easement and the enjoyment and occupation of the
dominant tenement.
- Is the easement reasonably necessary for the better enjoyment of the dominant tenement as a
parcel of land?
- Must it be adjoining land? No but probably needs to be close to get the benefit:

- Re Ellenborough Park:
o The purchasers of the land adjacent to the park and other blocks within 100 metres of the
park were given rights to use the park as a ‘pleasure ground’.

o Was the right to use the pleasure park connected to the use and enjoyment of the houses that
the right had been granted to?
o yes because the park was intended to be a garden for these properties
o (Someone else owned the park- they just have right to use it)

- Gallagher v Rainbow: Private Road jointly owned by lots 14, 15, 16, 17.
o One of the lots subdivided
To the extent that any part of the dominant land may benefit from that easement, the
easement will be enforceable for the benefit of that part

o In this case, the easement would attach to each of the new subdivisions because the easement
provided access to all of the land of the dominant tenement.

- Frater v Finlay: (sometimes accommodation comes with obligations)

- Easement to receive water with an obligation to pay half the cost of keeping the well and
pipes and tanks and equipment in good order and condition.
o Two easements or one? It’s one easement and it is an essential part of an easement.
 3) The dominant and servient tenement must not be held and occupied by
the same person
- You cannot have an easement over your own land
- Statutory exceptions to this rule now exist: when you buy two lands next to each other and
merge them, then sell them later or subdivided you should create an easement.

o s 88B CA – Recording or registering a plan of land indicating an easement creates an

easement even if the dominant and servient tenement is in the same ownership.
o s 46A RPA –Allows owner of common land to register easements with respect to that land
o s 47(6) RPA: easements recorded on Torrens register are not extinguished because land
comes into common ownership.

4) The right must be capable of forming the subject matter of a grant

- Re Ellenborough Park: Mere right of recreation? No – they had the right to use the park
- Riley v Penttila: (Tennis court)
- A subdivision for residential development included an area “for the purposes of recreation or
a garden or a park”
- Held: the right granted to the owners of the surrounding residential blocks to use the
communal area was an easement.

- Regency Villas Title v Diamond Resorts: Broome Park Estate – subdivided to create
Country Club
 whether the particular recreational or sporting rights granted accommodate the dominant
tenement?
o there was a valid easement, there was accommodation

- Jackson v Mulvaney: “the court will lean in favour of the creation of an [express] easement
if the intention of the parties was clearly to that end”.

- Degree of possession/judicial interpretation

What’s left for the servient tenement?
o Wright v Macadam: (an easement to store coal in a coal shed on large land)

- Copeland v Greenhalf: right to Park trucks –he locked the owner - is not an easement, claim
to possession of the servient tenement.
 he can leave as many or a few lorries there as he likes for as long as he likes;
 he may enter on it by himself, and agents to do repair work thereon.
o Harada v Registrar of Titles: (nothing left for the servient - Easement rejected)
- Easement for overhead power lines
o the servient owner was left "with very few rights over her property and she could do little
more with it than move over it and park cars on it".
- London and Blenheim Estates Ltd v Ladbroke Retail Parks: (Business parking – nothing
left for the servient tenement – easement rejected)
o Claim for an easement giving a right of way and a right for customers of the dominant
owner's business to park on a part of the servient tenement
o A small coal shed in a large property is one thing, the exclusive use of a large part of the
alleged servient tenement is another.

- Evanel v Nelson: (the validity of an easement for a "right of footway” for a garden)
o Easement excluded the servient owner from the relevant area of land at all times except on
one day of the year except one day each year
o the servient owner was not excluded from the land

- Clos Farming Estates v Easton: (An easement rejected for a vineyard)

o Dominant tenement holder could enter the land and control it by means of planting,
maintenance, harvesting, marketing, packaging and selling
o the servient owner lacked exclusive possession

- Moncrieff v Jamieson: (car parking – its easement)

o Land A was a small cottage at the bottom of a cliff.
o The cottage had an easement attached to use the private road.
o Was a right to park capable of being an easement or did it amount to a grant of exclusive
possession?
o if the right to park is a right to park in a large space, such that the servient owner is not
precluded from one particular spot of the land all the time – instead, the car could be parked
in any number of spots – then that is fine.
o if the space is only large enough for one car and the car must be parked in that one spot, it
might not be capable of forming an easement as this would exclude the servient land owner.

- Jea Holdings (Aust) v Registrar-General: (Car parking right – dominant tenement

customer uses the car park too)
o Servient tenement holder could build below and above the car park
o Follow: Clos Farming Estates, London and Blenheim
 The plaintiff is able to use the car park and from a practical perspective, the extent of its user
is substantial in that there are 198 car spaces available for the patrons of both the plaintiff's
and the second defendant's businesses to share. The plaintiff has far more than a nominal
proprietorship.
 They didn’t register the right as an easement, they registered it as a covenant.
 But its easement, and servient tenement is not excluded.
 Easements: Creation

- Express easements – Old system land

- Section 23B CA: under the old system must be created by deed.
- 'Equitable easements': the requirement to show the four matters referred to in Re
Ellenborough Park.

- Sections 23E and 54A CA: Part performance might also find a right to an 'equitable
easement' if sufficient evidence can be produced

- Express grant in Torrens

- s 46 RPA: provides for the creation of easements through execution and registration of an
approved form of transfer.

- s 47 RPA: Registration confers indefeasible title on the easement.

- s 51 RPA: A transfer of an interest under Torrens vests all relevant interests including
easements in the transferee without the necessity of using specific words.

s 88(1) Conveyancing Act: (it deals with restriction and covenant – give right to council)
- a restriction arising under covenant or otherwise as to the user of any land shall not be
enforceable unless the instrument clearly indicates:
o (a) the land to which the benefit of the easement or restriction is appurtenant,
o (b) the land which is subject to the burden of the easement or restriction:
o (c) the persons (if any) having the right to release, vary, or modify the restriction,
o (d) the persons (if any) whose consent to a release, variation, or modification

- Papdopolas v Goodwin: is authority for the proposition that ‘clearly indicate’ means ‘point
to’ rather than ‘state’. as long as the land benefitted and burdened can be clearly identified
from the instrument, this will be sufficient.

Express reservation
- s 44A CA: validates reservations contained in the transfer of the fee simple (dividing your
land and sell to someone but you keep the right of way for yourself) you should do it in deed/
register it as well.

- Easements created through law

- you can get a court order for an easement.
 - Section 88K: the court has a right to force a right to use land where it is reasonably necessary
in the interests of the effective use of the neighbouring land.
- Easement must be ‘reasonably necessary’ for the use of the dominant land
- 117 York St Pty Ltd v Proprietors of Strata Plan: dispute over easements in a
redevelopment of a building in the city.
o the phrase in s 88K(1) CA “the easement is reasonably necessary for the effective use or
development of other land”

- ING Bank v O'Shea: (easement was for convenience of the person)

o Informal family arrangement for vehicle access between the properties.
o an easement was registered for limited rights of carriageway and footway – requiring the
payment - breach of it
o Now they want to cancel easement.
o refused to grant an equivalent easement under s 88K.
o The easement had been for the convenience of the person but not necessary.

Implied easements

Common law doctrine: There are a group of circumstances that is create imply easement:

1) Abutting Private Road

- Dabbs v Seaman (land on private road)

o There is a right of way next to her house on private road, She can get an easement over it
even it is not registered as an easement.

- Limited to where the road is also Torrens land: Cowlisaw v Ponsford

2) Common Intention Easement

It’s so obvious there should be an easement but they did not mention it. (right if support)

- Pwllbach Colliery v Woodman: common intention easement

- Richards v Rose: the adjoining house which had a common support wall created an implied
easement right of support

- Lyttelton Times v Warners: (person buys or heir the land has that easement?)
o The maxim that a grantor cannot derogate from his grant expresses the duty ordinarily laid on
a man who sells or leases land.
 3) Non-Derogation from Grant
- Nelson v Walker: in circumstances where a grantor grants land to a grantee for a specific
purpose and that specific purpose requires some sort of easement over neighbouring land held
by the grantor.
- In these cases the easement is granted to stop the grantor from doing something on retained
land that makes the land disposed of unfit or materially less fit for the intended use.

- Keberwar v Harkin:
o Browne v Flower and Nelson v Walker: If the sale of land is made for a particular purpose,
the vendor is under an obligation not to render the land sold unfit or materially less fit for that
purpose.
o Siddons v Short, Harley: If a vendor sells part of his land, knowing that the purchaser
intends to erect a building upon that land, the vendor impliedly undertakes not to use his
adjoining land so as to injure or interfere with the building.

o Nelson v Walker: a right in the purchaser is only implied if, having regard to the
circumstances, the parties must be taken to have contemplated that the land retained by the
vendor would not be used by him in a manner inconsistent with that right:
4) Continuous and Apparent Easements
- Wheeldon v Burrows: (blocked the light)
- the Court considered an application for an implied reservation of a right to light arising from
the sale of land.
- the principle for continuous and apparent easements as:
o on the grant by the owner of a tenement of part of that tenement, as it is then used and
enjoyed, there will pass to the grantee all those continuous and apparent easements, all those
easements which are necessary to the reasonable enjoyment of the property granted, and
which have been and are at the time of the grant used by the owners of the entirety for the
benefit of the part granted down.
- Four elements are necessary to show a W v B easement:
o There must be a grant of a part of the land (a severance);
o At the time of the grant, the exercise of the easement must be continuous and apparent;
o The easement must be necessary for the reasonable enjoyment of the land granted;
o Just before the time of severance, the grantor must have been using the easement for the
benefit of the land granted.
- McGrath v Campbell: the common transferor intended one party to take the burden and
another party to take the benefit of any continuous and apparent easement and that those
parties who knew about the other transaction also intended that to happen

- Aldridge v Wright: access road

o Where an owner executes conveyances of adjoining plots with the houses erected on them,
and there exists a made road across the land of one plot to an entrance to the house on the
other plot, and it is proved that the road was constructed for the use of both houses.
o there will be implied a grant in the one conveyance of a right to use the road and a
corresponding reservation in the other conveyance.
5) Easements by Necessity
- “If the grantor intends to reserve any right over the tenement granted, it is his duty to reserve
it expressly in the grant
- but there is the well-known exception which attaches to cases of what are called ways of
necessity” Wheeldon v Burrows:
- Can only arise in cases of severance
- Must be essential to the use of the dominant land rather than merely inconvenient:
- Union Lighterage Co v Londo Graving Dock

Easements by Necessity – intention

- North Sydney Printing Ltd v Sabemo Investments (the corner of the land left without
access to the road – council will buy it – 50 cent - rejected)
o The court rejected it, you can’t argue the necessity, you created this situation
o You never intended that an easement should be created

- Australian Hi Fi Publications v Gehl: (corner shop – Torrens problem)

o During their ownership, a block of shops was erected and subsequently an office block. At
that time there were two buildings on the land.
o Both sold. There was no reference in any of the contracts or transfers or the certificates of
title to any easements providing for rights of way.

 the parties actually involved in Rule Wheeldon v Burrows:

 The Court considered that if the land had been under old system title then the rule would
have allowed the subsequent owners of lot 1 to claim a right of way over those parts of lot 2
used as the right of way
 Rights, such as those which arose upon the sale of the land by the Savage family to the
defendant, would normally be within the class of rights existing personally against the Savage
family as proprietors and so enforceable against them s. 42.
 Those rights would not be enforceable against a subsequent registered proprietor taking
without fraud.
 exception to the right created by that deed would not be enforceable against a subsequent
registered proprietor.

- McGrath v Campbell
o Two adjoining lots were owned by a single registered proprietor. The northern lot (Lot 6)
faced a main road, while the southern lot (Lot 12) was bounded by a street known as Brighton
Avenue. A registered easement had been created over both lots in favour of a third adjoining
property.
o W v B does not apply to the Torrens system.
o Both were RP’s. Could the owner of the dominant tenement enforce the easement against the
owner of the servient tenement and then force them to register that easement?

o such an implied easement arises out of the common intention of the relevant parties, which is
presumed by operation of law. Prescriptive easements arise in a similar way.

o If prescriptive easements are trumped by the indefeasibility provisions of the RP Act, logic
requires that those provisions should apply to implied easements in the same way

- Kitching v Phillips (nothing was in the contract)

o Torrens land and zoned as “open space” and “communal dog area” on planning
o Documents Not registered on the title
o Land later subdivided and sold
o Implied term of sale?
o In this case, where there was a formal written contract, and a formal conveyance (the
transfer), The parties have gone to considerable lengths to record their bargain in writing.
o There has been no claim for rectification.
o No implied term meant no case of non-derogation of grant

Prescriptive easements “time immemorial”.

o Delohery v Permanent Trustee Co of NSW: (in Australia)

the doctrine of the “lost modern grant” was the proper means to categorise an easement
acquired by prescription.
- The matters required to be proved are:
o That the use has been “as of right”.
o That the use has been “not by force, secrecy, or permission”.
o That the use has been “continuous” for twenty years”.
o Prescriptive easements are legal not Eq
- The use for the 20-year period must be continuous, but as with W v B easements, the nature
of continuous use needed will depend on the land and the nature of the right claimed.
(hunting season)

- Dobbie v Davidson (old system)

- This happened for 60 years
- Everyones dead
- Become Torrens but not registered. Continue to use it as before.
o The NSW Court of Appeal found that there was no evidence of specific permission, or of the
user ever asking permission
o there was never an attempt by the owners of LP to prevent or interfere with such use, nor to
assert that the use of the access road was only by permission.
o It was prescribed easement when they converted the land to Torrens title, they omitted to put
easement. They were using for 60 years.
o If its an old system and you have used it for 20 years, it was a legal easement but omitted on
conversion. When you registered the land in Torrens title.

Easements - Exceptions to Indefeasibility

- Omitted or misdescribed easements
- Doesn’t save anything if not registered in Torrens.

- Section 42(1)(b) amended to s 42(1) (a1)

o (a1) in the case of the omission or misdescription of an easement subsisting immediately
before the land was brought under the provisions of this Act or validly created at or after
that time under this or any other Act or a Commonwealth Act.
o Section 46 requires an easement to be in the approved form
o Section 47 requires the easement to be recorded (its on the document but in the wrong
place /registered
o This section saves the old system easement left off during the conversion process but also
saves things on the title, if not correctly recorded but still there, but this section does not save
anything that is not recorded.

Williams v State Transit Authority (Torrens system/ never create an easement/ similar to
Dobbie but different period of use)
o The dominant land was the Randwick Race Course and they claimed an easement for their
sewerage pipes by long use of land owned by the State Transport Authority which was next
to the Race Course. The STA agreed to sell the land to a third party but after they exchanged
contracts, Randwick lodged a caveat and the matter ended up in court.
o whether the prescriptive easement gave Randwick an equitable right to force the STA to
register the easement
 Answer: No – both Lands are in Torrens system and s.47 RPA says the easement should be
recorded.
o Australian Hi Fi Publications v Gehl (registered proprietor taking without fraud)
o Rights, such as those which arose upon the sale of the land by the Savage family to the
defendant, would normally be within the class of rights existing personally against the Savage
family as proprietors and so enforceable against them notwithstanding s. 42.
o Those rights would not be enforceable against a subsequent registered proprietor taking
without fraud;
o The right created by that deed would not be enforceable against a subsequent registered
proprietor.

- Castle Constructions v Sahab Holdings: (continues to exist because it was recorded)

- Castle (servient) asked for an old easement to be removed as it was only intended to be for
the benefit of the original owners
- The RG removed the easement over both properties after giving notice to the dominant
tenement holders who did not object.
- Sahab asked for the easement to be restored some years later. (dominant)
o It argued that s 42(1) (a1) would allow the easement to be restored because the easement was
omitted
 The easement in that case continues to exist because it has been registered and not removed
from the Register.

- Jea Holdings (Aust) v Registrar-General of NSW: (Car parking right- recorded as sth else
(covenant), not as an easement - misdescribed)
- Servient tenement holder could build below and above the car park
- Was registered as a covenant but only on the benefitted (dominant) land not the burdened
land (servient)
- Could s 42(1)(a1) apply?
- It was recorded s. 46 RPA but misdescribed its valid easement.

Easements – Extent of use

- White v Grand Hotel:

- a right of way over a privately owned laneway which allows the dominant to access the rear
of his property through a gateway. The owner of the dominant tenement sold the premises to
a hotel and the rear yard was used as a garage for motor cars belonging to visitors.
o when the agreement was made, that is to say, as a private dwelling-house and foot way.

o it is a right of way claimed under a grant, in the nature of the width of the road or something
of that kind, full effect must be given to the grant, and we cannot consider the subsequent
user as in any way sufficient to cut down the generality of the grant.

- Gallagher v Rainbow (main case)

- general principles on the construction of easements:
- In construing the grant of an easement, the court will consider:
- (1) the site of the easement over which the way is granted;
- (2) the nature of the servient tenement
- (3) the purpose for which the way is to be used.

- Jelbert v Davis (Breach of easement – change from private to commercial use)

o Farm turn to the caravan park
o Massive increase in usage
o a grant in these terms does not authorise unlimited use of the way.
o It must not be used so as to interfere unreasonably with the use by those other persons, that is,
with their use of it as they do now, or as they may do lawfully in the future.
- Excessive use went beyond the grant

- Westfield Management v Perpetual Trustee Company (didn’t change the nature – only
Sky Garden can use, if you are at pitt st you cant use easement - interpretation)
o Westfield is the owner of the Sky Garden complex in Pitt St Mall. Perpetual is the owner of
the Glass House complex.
o Former owners of Glass House granted an easement to former owners of Sky Garden
o The terms of the grant of easement read:
o Full and free right of carriageway for the grantee its successors in title and registered
proprietors for the time being of an estate or interest in possession of the land herein indicated
to go, pass and repass at all times and for all purposes with vehicles to and from the said lots
benefited or any such part thereof across the lots burdened.

o They sought a declaration that they could use the right of way for this purpose and
Glasshouse defended arguing that they could only use the right of way to access Sky Garden.
o Westfield argued that the words ‘for all purposes

o held the phrase ‘for all purposes’ had to be read in the context of the grant as a whole
o granting the capacity to use the easement for all purposes connected with the grant of the
easement
o The easement in this case was granted for all purposes involving travelling to and from Sky
Garden not across Sky Garden. Westfield had the right to cross Glass House for ANY
purpose provided that that crossing was just to and from Sky Garden not across Sky Garden.

o the contractual rules of interpretation should not be resorted to for registered easements
o The importance this has for the construction of the terms in which easements are granted has
been remarked in Riley v Penttila and in Pearce v City of Hobart.

- Sertari v Nirimba Developments: (massive change – need to upgrade easement)

o 7 m right of way through the car park of the Quakers
o Servient tenement holder objected to the development of 236 units and underground parking
for 351 vehicles
o Planning consent was granted for the development but the easement needed to be upgraded
o The servient tenement holder refused to agree to the upgrade

o A) Full and free right for every person …

o B) The site of the servient tenement shall be maintained and repaired by the registered
proprietor
o The dominant tenement is very large, the servient tenement is very small, the use is for all
purposes, and the whole burden of maintenance and repair is clearly imposed on the servient
owner.
o the principles in Jelbert v Davis do not assist the appellant at this stage, cuase, in that case,
the could prove massive change.
o They didn’t do anything cause there was no evidence to massive change.

What about implied easements, and what of changes in technology?

Lock v Abercester
o where proof is given of the user of a way by carriages drawn by horses for the required period
so as to establish the right to an easement for a carriageway, the right so acquired is one
which enables the owner of the dominant tenement to use the way with mechanically
propelled vehicles.

- Maintenance and repair?

o Servient tenement holders cannot be held to make repairs unless they have been expressly set
out in the contract
o S 88BA CA does allow them to be registered.
o Rights of Way can also be upgraded with paving or concreting depending on what is
reasonably necessary for his or her enjoyment of the easement: Butler v Muddle

- Interference
o Interference is a basic nuisance
o Bullard v Harrison: If there is an obstruction you can deviate
o Hemmes Hermitage v Abdurahman: compost bin was in the way so the parties could
deviate

- Stolyar v Towers
- The Stolyars and the Towers were neighbours
- An easement was created by Mrs Stolyar’s predecessor in the title
- it granted a right of vehicle parking and garaging which burdens Mrs Stolyar’s property,
- A single garage had been built on the easement area and Towers parked vehicles for many
years.
- The Stolyars had a double garage which was adjacent to the single garage
- Some time ago, a turntable was installed in the area in front of the double garage but it no
longer worked
- The Stolyars complained about the Towers blocking them from turning around and reversing
into their garage by parking in front of their single garage
- Full and free right for the person or body in whose favour this easement is created.
- The Towers claimed that the Stolyars had wrongfully interfered with the Towers’ rights
under the easement
- The Stolyars denied the allegations of wrongful interference

o Trial judge found the easement to be valid

o the rights granted by the easement did not amount to joint ownership of the easement strip,
nor did they substantially deprive Mrs Stolyar of her proprietorship or possession of the area
actually affected by the easement

- Lowe v Kladis (development)

o Kladis lodged a development application for the construction of an elevated driveway from a
public street to his property

 The purposes for which the dominant owner may use a right of carriageway must also take
into account the inherent nature of such a right.

o When are obstructions actionable?

 IPowell v Langdon:
The test is whether what has been done or is proposed to be done is a real substantial
interference with the right of way.
 “the servient owner is not entitled to do anything ... which substantially interferes with the
exercise by the dominant owner of such of the rights conferred on him by the grant as for the
time being he wishes to exercise”.
 The principle applied in these cases does not mean that any interference by the servient
owner with the dominant owner’s enjoyment of the right of the carriageway is actionable.
 For example, a right of carriageway does not generally confer upon the dominant owner a
right to enter the carriageway from every part of the dominant tenement adjoining the
carriageway.
 The general principle is that the servient owner is entitled to fence the right of way in order to
secure the servient owner’s property along the boundary, provided that the dominant owner
retains access through gates that permit reasonable exercise of the right of way.

o Rights of dominant owner:

 the dominant owner has such rights as are reasonably necessary for the exercise or enjoyment
of the easement.
 Hemmes Hermitage v Abdurahman: held that the owner of a dominant tenement was
entitled to go onto the servient tenement beyond the boundaries of a footway, to undertake
works necessary to maintain the trafficability of the right of footway.

 The ancillary rights of a dominant owner include, where appropriate, the right to obtain the
written consent of the owner of the servient tenement to the lodgement of a development
application by the dominant owner.

 Sertari: held that such an order can be made where the development application is for the
construction of improvements on the right of way which are reasonably necessary for the
proper enjoyment of the easement.

o Dominant owners cannot obstruct others:

 The construction of the elevated roadway would effectively deny No 28 the use of Strip 2.
The proposed access gate would give the occupiers of No 28 direct access to the elevated
driveway at one point. But so far as the plans reveal, the occupiers would not be able to gain
access to Strip 2 its own land
 In effect the proposed elevated driveway would deny the owner of Strip 2 the right to use that
land even as a pathway.

Easements – Variations, Abandonments and extinguishment

- Common ownership – OST and Torrens

- Section 89 CA – obsolete: this section gives the court power
- Section 49 RPA – 20 years of non-use RG may treat easement as abandoned but does not
effect CL rules

- Treweeke v Wolsely Road: (you did sth that no one can use, it did not abandon)
o Over the next few years, she increased the bamboo plantation, installed a retaining wall, built
a fence and constructed a swimming pool, …

o the High Court found that the construction of a fence did not evince a clear intention to
abandon the easement because the fence could be moved or a gate could be inserted.
o the high court found that an easement will not be extinguished by non-use alone.
o In this case, the non-use of the right of way could be explained by the state of the path,
including the dangerous rock face, rather than an intention to abandon.
o There was no intention to abandonment.

- Pieper v Edwards: (express released)

- This case involved an express easement for a carriageway registered on the folio.
- However, in 1970, an agreement had been entered into by a previous owner of the dominant
land to release the right of way.
- The paperwork had been completed, but the transfer had never been registered.
- the owner of the servient land sought an order under s 89(1) that the easement be
extinguished because the previous owners of the dominant tenement had agreed to modify or
extinguish the easement (as set out in s 89(1)(b)).
- In response, Pieper argued that he had indefeasible title to the registered easement s.42 and
had relied on the folio when he bought the land.
- The Court found that s 89 CA necessarily assumes that there will be a registered easement
that will be subject to an application for extinguishment. If the register was deemed to be
conclusive on this point, then the scope and purpose of s 89 would be destroyed.

- Because the previous owner has gone through the process and abandoned that was evidence
of abandonment. You can raise s.42 here.

- The court exercised its discretion and extinguished the easement.

Profits
Definition
- A profit is a right to take away the natural products of the land
- Crops, minerals, soil and timber: Connelley v Noone
- Right to hunt and fish: Alfred F Beckett v Lyons
A profit is not...
- A business: Frank Warr v London County Council
- A right to take cultivated crops or domesticated animals: Permanent Trustee
Australia v Shand (plantation of macadamia nuts);
- Clos Farming Estates v Easton (vineyard)
- Timber may be an exception to this if it is slow-growing: Corporate Affairs
Commission v ASC Timbers
- Forestry rights are defined to be profits by virtue of s 88AB
- A personal interest or license: King v David Allen & Sons
- Exclusive possession
Differences with easements
- Can exist in gross: Ellison v Vukecevic
How Profits are created
- Old system: deed s 23B, 88AA, 88AB
- Torrens system: registration ss 46, 46A, 47
- Prescription: 20 years, Barton v The Church Commissioners for England
- Equity: Walsh, part performance
- Omitted or misdescribed: s 42(1)(b)
How are profits extinguished?
- Similar to easements
- Agreement
- Common ownership
- Abandonment
- Obsolete