Written by The recent case of Chatterton v City of Parramatta Council [2022] NSWSC 1603considered an application for a statutory modification to two easements, in circumstances where the easements had been granted in 1922 to provide access to a public road, and where the character of the land had changed from rural to suburban in the ensuing decades.
The plaintiffs were the registered proprietors of residential land (Lot 56 depicted in the image below) in Northmead NSW, and sought an order under s 89 of the Conveyancing Act 1919 (NSW) for the extinguishment or modification of two easements registered on their title.
The easements were created at a time when the land was used for agricultural purposes and provided for a right of way over a 6 metre wide strip of land which extended 66 metres along the eastern boundary of the land.
The defendant, Paramatta Council, was the registered proprietor of the land south of the plaintiff’s land, that had the benefit of one of the easements. The other easement benefitted various subdivided lots on the other side of the land.
The plaintiffs sought to reduce the width of the easement in their application. The Court approached the dispute by construing the easements in order to ‘identify the nature and extend of the rights conferred.’
On the issue of whether the easement was obsolete or impeded the reasonable use of the land (pursuant to s 89(1)(a)), the Court held that the concept of a ‘reasonable impediment’ is a narrow one, requiring the applicant to show that no reasonable use is possible unless the easement is extinguished or modified. In other words, they must show that the unmodified easement ‘hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property and the purposes of the easement.’ As the plaintiffs were not able to satisfy these elements, their claims to modify the easement failed.
Moreover, the plaintiffs were also unsuccessful in their claims that the easements had been abandoned on the basis that the easement was no longer used for farming purposes and could thus be reduced to a 1.5 metre width. Although the use of the easements was primarily for pedestrians only now, it had not been relevantly abandoned and the full 6 metre width of the easement was rarely used in practice.