A problem with "Standard" easements

Since the mid 1960s there has been a standard contract for the sale of land. More recently there has been a standard contract for the sale of businesses. New editions are prepared about every five years by the Law Society and the Real Estate Institute and take into account new legislation, court cases and suggestions from solicitors, real estate agents and some government departments. Just about everyone uses them. There are many advantages, they are revised often, so they are up to date; they are well known, so people not only know the clauses but also what the courts have said about them, they are designed to be fair to all the parties concerned.

There are also several standard leases- some prepared by the Law Society, some by the Real Estate Institute They haven’t been quite as successful perhaps because it is harder to design a lease that will fit all purposes.

There are also standard easements terms: the first set of these was written many years ago and appear as a schedule in the Conveyancing Act. Since then others have been added with more up to date language. Easements are generally a right by a neighbouring owner over another owners property- perhaps the most common is a right of way. Others include easements allowing one owner to pipe waterthrough the neighbour’s land, to carry electricity wires through the neighbour’s l land, for support of a building, even for recreation. There are many other examples and only the most common have been given a standard form. Many solicitors use them widely. Again they have most of the advantages of the standard contracts- they are updated, (though once an easement in a particular form is created it stays in that form until the parties agree to change it –if they ever do), they are designed to be fair and court cases establish the meaning.

Or rather they did have those advantages. Because recently some court cases have greatly changed the meaning of the most common – the easement for a right of way.
Until recently the law was (as the standard textbook on Land Law in Australia said)the document creating the easement is construed according to the natural meaning of its words, read in the light of circumstances existing at the time of the grant. This reflects the now settled principle that “interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the grant

Two examples of this will show what it means. A famous English case involved a right of way allowing access ‘at all times and for all purposes” over a rural laneway 9 ft wide. The court noting that at the time the easement was created the land was farming said the right did not allow buses to be driven along it –even though the land use had changed; a bus company having bought the land benefited by the easement . It wanted to use the land as a depot. It lost.

A second more recent case involved two adjoining commercial blocks. One had an easement over the other again for … “for all purposes connected with the use and enjoyment “ of the land benefited which was used as a fruit shop. The delivery drivers wanted to park their vehicles on the right of way while loading and unloading.

The Queensland Court of Appeal held there was no right to stop to load and unload becasue. Crucial to their decision was a finding that, at the time the easement was granted (1955), the land benefited by the easement was not built on to the extent that it now was. The right of way ran to the rear of the dominant land, and in 1955 the rear area was undeveloped. Vehicles using the right of way could (in 1955) enter the dominant land and load and unload; there was no need for them (in 1955) to stop to load and unload on the right of way itself.

And that was the quite clear law- you looked at the circumstances – including the land use- at the time the easement was created.
But not any more. in Sertari Pty Ltd v Nirimba Developments Pty Ltd the NSW Court of Appeal said the only things to take into account are the document that created the easement, the plan of the land the the pysical characteristics of the benefited and burdened land.

That case shows the difference and also the enormous problems this change has created for people whose land is burdened by an easement.

The easement was created over a hotel car park at to provide an secondary route to a Telecom installatoin on what was then Schofields Aerodrome. The aerodrome was owned by the Commonwealth government and used as a back up to Richmond RAAF base.
The easement required the owner of the land burdened to pay the costs of maintaining the access way. The council had required the easement to be created as a condition of the hotel development

Recently the aerodrome was sold, subdivided and the land remaining as benefited was being redeveloped as a medium density housing estate with 236 homes on about 2ha. The council rejected the development, partly because the easement would be the only access and the hotel owner objected to the use (it would stop a lot of patrons parking in the parking area. Such a busy road would also create problems for pedestrians- not only hotel patrons. . The developer successfully appealed against the hotel owners refusal to the court of appeal. IT said that the easement was one which allowed access for all purposes. The court said in considering the easement you could not take into account the history (as had been done in previous cases) and that the hotel owner had to agree because it was a right of way for all purposes. It also said that it was not interested in whatever traffic problems its decision might cause.

Some links.
The Conveyancing Act Easements
Easements in gross- for government departments http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/sch4a.html
“Normal easements” for adjoining landowners http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/sch8.html
Sertari Pty Ltd v Nirimba Developments Pty Ltd
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2007/324.html?stem=0&synonyms=0&query=title(Sertari%20Pty%20Ltd%20near%20Nirimba%20Developments%20Pty%20Ltd%20)