Posted on October 9, 2024 by Frances Tse and Thuy Pham 4

An easement that prevents a landowner’s reasonable use of land is not an easement

Every easement is a form of interference with the ordinary use of the servient land. However, a right cannot be an easement if it is so extensive that the landowner of the servient tenement is effectively ‘ousted’ from the land altogether.

The Supreme Court of NSW has recently clarified the proper approach to considering when rights granted under an easement may extend too far, and not be the proper subject matter of an easement.

This case has implications not only for private individuals but potentially also for public authorities that may be seeking the benefit of an easement that significantly impacts the practical use by the owners of the land burdened by the easement.

Easements generally

An easement under the general law must satisfy the following four conditions:

1. There must be a dominant and a servient tenement.
2. An easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit.
3. The dominant and servient owners must be different persons.
4. The right claimed must be capable of forming the subject-matter of a grant. That is, if a right effectively amounts to a claim for possession of the servient tenement, then that is not a proper subject matter of an easement.

It is typically easy to identify whether the first three conditions are satisfied. However, the fourth condition, also referred to as the ‘ouster principle’, is not as straightforward and has been the subject of significant judicial consideration.

The Courts have historically taken differing approaches in applying the ‘ouster principle’. In this case of Petrie v Dickson [2024] NSWSC 972, Parker J of the Supreme Court of NSW clarifies the proper approach.

Facts

In this case, the parties are neighbours in a duplex building development at Palm Beach consisting of Lot 1 and Lot 2.

An easement ‘for garden use’ which also allows for the construction of a storage shed burdens Lot 2 and benefits Lot 1.  The relevant part of the easement is worded as follows:

1)   The owner of the lot benefited may use that part of the lot burdened by the site of this easement for:
a.   gardening which may include, but is not limited to, the growing of grass, plants, shrubs and trees together with any work associated with establishing, maintaining and replacing such vegetation.
b.   paving and landscaping
c.   storage of equipment, implements and materials consistent with carrying out the activities referred to in paragraphs 1a & 1b.

The shed that was constructed is described by the Court as a ‘substantial structure’.

Court’s consideration

Parker J, after considering numerous cases and the differing approaches to the ‘ouster principle’ applied the approach adopted by Bryson J in Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525. This approach looks to the extent to which the owner of the servient land could actually use the land in a practical sense:

“The essential question is one of degree. If the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land, whether for parking or anything else, it could not be an easement though it might be some larger or different grant.” 

Parker J considered in detail the practical effects of the easement for garden use and held that the servient owners were, in practice, deprived of any control over how the easement area may be used or developed. The Court described their ownership as ‘effectively sterile and nominal‘ for the following reasons:

• the nature of the gardening easement which allowed the owners of Lot 1 to establish and maintain a garden on the servient land meant that little if any practical use could be made by the owners of Lot 2 of the easement area. For example, the easement meant that the servient land could not be roofed over and the air space above it developed, and any development of the area below the surface would be significantly limited by the need to ensure that there was no interference with the drainage and root structure of the plants being grown;
• the owners of Lot 1 had complete discretion as to the vegetation to be grown (and the landscaping to be carried out) and there was nothing in the terms of the easement which required them to exercise their rights in common with others;
• in respect of the shed, the effect of the terms of the easement was that once built, the shed could only be used by the owners of Lot 1 for storage and laundry purposes and effectively prevented any other use of the interior of the building.

Park J further observed that although the easement area accounted for only 12% of the surface area of Lot 2 as a whole, the effective exclusion of the servient owners from the area, including the airspace above it and the subsurface below, is virtually total. In effect, the easement cuts off the garden area in Lot 2 and gives occupation of it to Lot 1.

On that basis, Parker J ultimately held that the easement in this case infringed the ouster principle and as such, was invalid.

Implications

This case is consistent with the Court of Appeal’s decision in Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292 which we blogged on here, where a proposed easement that gave “wholesale occupation” of the council-owned land to the exclusion of the council in that case, was considered to not be an easement that is understood by the general law and could not be granted.

Although not expressly dealt with in the judgment, Parker J’s conclusion could potentially apply also to easements in gross that benefit public authorities.

The case serves as a reminder that when considering the terms of an easement, one must carefully consider the practical impact of the easement on the servient land. If the easement grants a right that would in practice deprive the servient owner of any control over how the land may be used, then an easement may not be suitable and an alternative such as a lease or the transfer of that land may be more appropriate in the circumstances.

You can read the decision in full here: Petrie v Dickson [2024] NSWSC 972.

If you have any questions in relation to this post, please contact Frances Tse or Thuy Pham.