Eddowes, Re [1990] QSC 473 [1991] 2 Qd R 381

IN THE SUPREME COURT OF QUEENSLAND BETWEEN: Counsel: O.S. No. 701 of 1989 IN THE MATTER of The Property Law Act 1974 - and - IN THE MATTER of Easement E 53590 over resubdivisions 5 and 6 of subdivision 56 of Portion 14 as shown on Cat. Plan No. 89987 on Certificate of Title Volume 3118 Folio 43 PETER JOHN EDDOWES and KERRY HELEN EDDOWES THE PROPRIETORS "MARICOPA" BUILDING UNITS PLAN NO. 3504 REASONS FOR JUDGMENT - AMBROSE J. Delivered the 12th day of October, 1990 Mr. McGregor for Applicants Miss Wilson for Respondents Applicants Respondents Solicitors: Watkins Stokes town agents for Rapp Hickey & Morgan Hearing Dates: Flower & Hart town agents for Chan & Coutts 9th August, 10th August and 21st August, 1990 -- 1 of 34 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: O.S. No. 701 of 1989 IN THE MATTER of The Property Law Act 1974 - and - IN THE MATTER of Easement E 53590 over resubdivisions 5 and 6 of subdivision 56 of Portion 14 as shown on Cat. Plan No. 89987 on Certificate of Title Volume 3118 Folio 43 PETER JOHN EDDOWES and KERRY HELEN EDDOWES THE PROPRIETORS "MARICOPA" BUILDING UNITS PLAN NO. 3504 REASONS FOR JUDGMENT - AMBROSE J. Delivered the 12th day of October, 1990 Applicants Respondents The applicants are the owners of an allotment of land having an area of approximately 900 square metres with a frontage to Marine Parade, Southport on the Gold Coast. It is described as resubs. 5 and 6 of subdivision 6 of portion 14 as shown on Plan Catalogue No. 28583 and described in Certificate of Title Vol. 3118 Folio 43. For convenience I will refer to that allotment as "The Local Shopping block". The respondents are the proprietors of "Maricopa" Building Units Plan No. 3504; as such they are the owners of the common property of a building units complex to be found on Lot 1 on -- 2 of 34 -- 2 Registered Plan No. 168652 having an area of 1249 square metres. That parcel of land is an L-shaped parcel having a frontage to Marine Parade of 22.118 metres and a frontage also to Whiting Street of 13.429 metres. The Certificate of Title for Lot 1 issued on 12th September, 1979 as the result of an amalgamation of two allotments of land, one being described as resub. 3 having a frontage to Marine Parade and a common boundary for the whole of its northern boundary with the Local Shopping block owned by the applicants and another parcel described as resub. 2 having a frontage to Whiting Street and a common boundary with the Local Shopping block at its rear to the north. The respondents' land was apparently assembled by amalgamating the two allotments to which I have referred for the purpose of constructing thereon a block of home units. Eventually the home units were constructed and Building Units Plan No. 3504 relating to that developed was registered on 30th November, 1979. For convenience I will refer to this land as "The Residential block". The problem which led to this application seems to have arisen when the applicants on 13th February, 1989 entered into a contract to sell the Local Shopping block to persons with plans to redevelop that site for commercial purposes. Those persons also have the right to acquire resub. 7 which abuts the northern boundary of the Local Shopping block. Many years ago the owner of the Local Shopping block granted to the owner of resub. 7 an easement running along the western and southern boundaries of their block apparently to give access from Marine Parade to the rear of resub. 7. -- 3 of 34 -- 3 In 1970 the then owners of resub. 3 (now part of the respondents' Residential block) and the owners of the Local Shopping block each granted to the other an easement over their respective lands. The owners of resub. 3 (then named Wilson) granted to the owners of the Local Shopping block (then named Lun) an easement running the full length of the northern boundary of their land with the Local Shopping block over a width of about 1.2 metres. In return the owners of the Local Shopping block (the Luns) granted to the Wilsons an easement over the same area of their land as was subject to the easement given in favour of the owners of sub. 7. This was conceded by counsel for both the applicants and the respondents although one may have thought it at least arguable upon construction of the grant by the Luns to the Wilsons that only that part of the area subject to the easement granted in favour of resub. 7 which extended westward for 150 links from the Marine Parade frontage of the Luns land was granted in favour of resub. 3. However, in the light of the contentions made on behalf of both the applicants and the respondents I will proceed on the basis that in fact in 1970 the owners of the Local Shopping block granted to the owners of resub. 3 (now part of the Residential block) an easement over all that part of .the Local Shopping block which was subject to the easement previously granted in favour of resub. 7 and in return were granted by the owners of resub. 3 an easement along the full length of the northern boundary of resub. 3 for a width of about 1.2 metres. Upon the amalgamation of the two allotments of land purchased for development thereon of the respondents' property -- 4 of 34 -- 4 (resubs. 2 and 3) a Certificate of Title issued on 12th September, 1979 and on it was registered the fact that on 25th June, 1971 an easement over that land had been produced in favour of the Local Shopping block and also the fact that in respect of that part of the land which had been resub. 3 the registered proprietor held the easement over the Local Shopping block which had been granted to the owner of resub. 3 in 1970. The view was apparently taken by the Registrar of Titles and not challenged in argument that upon amalgamation the easement rights appurtenant to resub. 3 over the Local Shopping block, whatever may have been the effect of the grant, enured for the benefit of that part (and only that part) of the amalgamated parcel of land described as Lot 1 on Registered Plan 168652 which had previously been resub. 3 the dominant tenement in respect of that easement. Such a view might accord with the ·approach Griffith C.J. expressed in Horsfall v. Braye (1908) 7 C.L.R. 629 at pp. 637-8. In this case when considering limitations upon user of the ea·sement after amalgamation, it seems to me one must notionally subdivide the amalgamated lot into its former parts and consider the extent to which user relates only to part of that land which was the former dominant tenement. The Building Units Plan was tendered and it is clear that it relates to 12 units each suitable for residential use. It also records the provision of 12 garages or "car spaces". I infer from the material and from all the evidence given that in effect there was one parking space or garage on the ground level of the development available for each of the 12 residential units constructed on three levels on that land. -- 5 of 34 -- 5 Examination of the Certificates of Title and Building Units Plan indicates that the residential units are to be found on three levels. Six of those units - numbered 1, 2, 3, 4, 9 and 10 are constructed on what was previously resub. 3. Of those six units two are on ground level. Units numbered 5, 6, 11 and 12 are constructed partly on the land previously comprised within resub. 3 but mainly on land previously comprised within resub. 2. Indeed units 6 and 12 are almost entirely on what was previously resub. 2 although it seems that the eastern end of those units may extend a short distance over what was previously the boundary line between resub. 3 and resub. 2. Units numbered 5 and 11 appear clearly to straddle the former boundary between resubs. 3 and 2. Units 7 and 8 each appear to be constructed with two floor levels and to be wholly upon the land which was previously resub. 2 prior to the amalgamation of the parcels for the development of the block of units. A significant part of the common property on the residential block of which the owners of the 12 units are tenants in common is to be found on the former resub. 3. The garages numbered 11 and 12 are wholly located on land that was formally within resub. 3. All other garages are either wholly or almost wholly located on land that was formerly resub. 2; certainly access to those other garages may only be obtained by vehicles across former resub. 2. It was after the applicants had agreed to sell the land for the purpose of its redevelopment in 1989 that it was realised for the first time by the prospective purchasers and presumably also -- 6 of 34 -- 6 by the people acting for the applicants that the mutual easements to which I have referred existed. Efforts were then made on behalf of the applicants and the purchasers to persuade the respondents to extinguish their easement rights. The applicants were willing to surrender their easement over the respondents' land. The purchasers from the applicants also had it within their power to acquire resub. 7 and it is clear that if and when resub. 7 is amalgamated with resubs. 5 and 6 for the purpose of redevelopment of the whole area commercially the original easement over resubs. 5 and 6 as a servient tenement in favour of resub. 7 as a dominant tenement will or may be extinguished. However for reasons which need not be detailed the respondents have declined to agree to a mutual extinguishment of the easements affecting the respective lands. A great deal of time was spent in canvassing the desirability of persons who might now or in the future occupy the respondents' land having the right to use the easement principally for the purpose of parking in two of the parking areas although possibly also for the purpose of gaining access to Marine Parade. I am persuaded that access to and egress from garages numbered 11 and 12 the entrances to which are located about 5. 64 metres from the boundary between the respondents' land and the applicants' land would be significantly enhanced if the vehicles involved might lawfully use that part of the applicants' land within the two metre easement area appurtenant to the respondents' land for the purpose of manoeuvring. This is not to say that it is impossible for vehicles currently using garages numbered 11 and 12 to gain access to them and egress from them. -- 7 of 34 -- 7 However, it is clear that it would be more convenient if there were a greater area to the north of the entrance to those garages in which such vehicles might manoeuvre. I have little doubt also that it would be at least as convenient if not indeed sometimes more convenient for the vehicles using garages numbered 11 and 12 if those vehicles could proceed from Marine Parade down the easement area within the applicants' land until they reached a position approximately north of the entrance to the garages and then turn into the garages from that easement. At the present time for reasons which will emerge it is quite impossible for vehicles using garages numbered 11 and 12 to use any part of the easement over the applicants' land. Before considering in any detail the significant evidence given and arguments addressed on this point it is desirable in my view to consider the planning constraints on the use of the easement on the applicants' land for purposes connected with the residential use of the respondents' land. When the proprietors of the applicants' land and what is now part of the respondents' land granted the respective easements each to the other in 197 0 each parcel of land was doubtless within the zones specified in the Town Planning Scheme then in force which had come into force on 6th April, 1963. There is no evidence as to what those zones were or as to whether the Local Shopping block might have been used for the same purposes as those for which the Residential block might have been used. I am informed that at the time the easements were granted the respondents' land was used for the purpose of a single unit dwelling house. On the other hand the applicants' land was then -- 8 of 34 -- 8 used for the purpose of "local shopping" and it seems that although that was a prohibited use under the 1973 Town Plan such use was probably protected as a lawful non-conforming use which existed at the time the plan came into effect. That protection is to be found under Part III of the 1973 Town Plan. There is no evidence as to the effect of the Town Planning Scheme in force when the mutual easements were granted in 1970; in any event the right of the applicants to use the easement over the respondents' land was not debated. It will be recalled that the Building Units Plan was registered on 30th November, 1979. At the time of that registration therefore the 1973 Town Plan then in force permitted that part of the applicants' land contained within the easement granted to the proprietor of the respondents' land to be used for purposes of the residential development upon it. I say this subject to any qualification that might be necessary having regard to questions of excessive user keeping in mind the fact that when the easement was granted and registered the dominant tenement seems to have been occupied by a single unit dwelling whereas at the time of registration of the Building Units Plan what had been the dominant tenement was occupied by six single unit dwellings and partly occupied by four other such units contained in the accommodation block and contained a significant area of which twelve unit owners were entitled to the use as tenants in common. On 27th March, 1982 a new Town Plan for the City of Gold Coast came into effect. Under this Town Plan the respondents' land is within the Residential D zone. However the applicants 1 land is now contained within the Local Shopping Zone and the use -- 9 of 34 -- 9 of land within that zone for the purpose of an accommodation building is prohibited. Under Part III of the 1982 Plan existing lawful, non-conforming uses are protected. Under cl. 10 a person may continue an existing non-conforming use of land - even though under the planning scheme from the day appointed for its commencement such use would otherwise be unlawful. under cl. 10 it is provided:- However, "Upon the discontinuance for a period of at least six months from any cause whatsoever of such existing non-conforming use the right to continue such existing non-conforming use shall cease unless the Council otherwise determines---" In my view it is clear that should any of the proprietors of the "Maricopa" Building Units Plan No. 3504 at the present time use any part of the applicants' land for the purpose of parking motor vehicles upon or gaining access to the building units site then such use would be incidental to and necessarily associated with the lawful use of the respondents' land and would be a use for the purpose of accommodation units within the meaning of the Town Plan for the City of Gold Coast which would be prohibited under the terms of that plan. I refer to Pioneer Concrete (Old.) Pty. Ltd. v. Brisbane City Council (1979-80) 145 C.L.R. 485 at p. 499 per Gibbs J. One important factual question for determination then is whether at a time prior to the current Town Plan coming into effect on 27th March, 1982 the easement over the applicants' land in respect of which part of the respondents' land is the dominant tenement was being used for the purpose of the accommodation units thereon. -- 10 of 34 -- 10 It is my view that if such a lawful use were being made of the easement between November 1979 when the Building Units Plan was registered and March 1982 when the current Town Plan came into effect then it will be necessary to consider what, if any, effect the provisions of Part III of the Town Planning Scheme giving protection to the existence of lawful non-conforming uses has in this case. If prior to 27th March, 1982 a lawful use were made of the easement for the purposes of that part of the Residential block which took the benefit of it and that use continued to that day then even though subsequent to 27th March, 1982 that use was discontinued for more than six months nevertheless under the provisions of cl. 10 of the current Town Planning Scheme the Council would have power to determine that such non-conforming use might once more continue. It is my view however that whatever the rights of the respondents may have been prior to 27th March, 1982 to use the easement over the respondents' land for the purpose of accommodation units if it cannot be said that any use was in fact being made of it on 27th March, 1982 for the benefit of that part of the Residential block formerly comprising resub. 3 then it cannot be said that there was at that date an existing use of any part of that easement. If there were in fact no existing use for the benefit of the dominant tenement of that easement it could not be said that there was any "existing non-conforming use" as at 27th March, 1982. In my view the Town Planning Scheme does not purport to protect whatever "rights" may have attached to that part of the respondents' land which constituted the dominant tenement with respect to that easement. It simply protects any -- 11 of 34 -- 1 1 use which was being made of land within the easement pursuant to those rights when the 1982 planning scheme took effect. In my view if no use of the easement was being made for the purposes of that part of the respondents' land to which it was appurtenant then Part III of the Town Planning Scheme simply has no application or effect. Mr. Bird gave evidence that he purchased unit number three in the "Maricopa" building in late 1983. At that time neither the garages numbered 11 and 12 nor the units to which they were allocated were occupied. Indeed his recollection is that neither of the units to which those garages were allocated nor the garages themselves were occupied until late 1986. As I understand his evidence it was late 1986 that unit number 11 was first occupied and unit number 12 was not occupied until 1987. In April 1984 after a cyclone had occurred Mr. Bird inspected units numbered 11 and 12 and also I gather the garages which were allocated to them. He was requested to do so for insurance purposes and having carefully inspected them came to the conclusion that they had not until that time ever been occupied. Indeed there was unfinished electrical work in one and unfinished plumbing work in another. I am satisfied on the whole of the evidence then that between November 1979 and March 1982 neither of the garages numbered 11 and 12 facing the northern boundary of the respondents' land nor units numbered 11 and 12 to which they were allocated were either occupied or used by any proprietor of "Maricopa" Building Units Plan No. 3504. -- 12 of 34 -- 12 It was in 1985 that the body corporate decided to construct an eight foot high chain wire fence down that part of the common boundary between the applicants' Local Shopping block and the respondents' Residential block to the west of a high brick fence running from Marine Parade back to a car washing area located on the respondents' land between the edge of the applicants' easement over the respondents' land and the residential units. It was decided to do this to discourage persons from walking from Whiting Street across the Residential block to Marine Parade. It seems clear from the evidence that when this step was taken neither the units numbered 11 and 12 nor the garages numbered 11 and 12 allocated to them were occupied by any person. The first of these units was not occupied until late 1986 and it was not until then that difficulties in driving into the garages were experienced. According to Mr. Bird before the high chain wire fence was erected in 1985 he certainly and I gather other proprietors of the units used sometimes to proceed by foot from their parked vehicles along the easement to get to the shops constructed upon the applicants' land. Because those shops provided milk and other small items needed for domestic consumption, people arriving at the block of units or departing therefrom apparently found it convenient sometimes to walk from their parked or stationary cars up the easement to get to Marine Parade to do their shopping rather than walk through the building to the gateway onto Marine Parade or out along Whiting Street into Marine Parade and reach the shops by that route. According to Mr. Bird at that time he occupied unit number three which as I -- 13 of 34 -- 13 have said was constructed wholly upon that part of the respondents' land which had previously been resub. 3, the dominant tenement in respect of the easement in issue. It is clear however that Mr. Bird parked his car upon that part of the Residential block which had not previously been part of the dominant tenement before making his way to the shops via that easement. Moreover it is clear from the Building Units Plan that the motor vehicles of all the proprietors of units other than those numbered 11 and 12 had car parking spaces located on that part of the amalgamated site which had never been part of the land which had been the dominant tenement in respect of the easement. In my view it cannot properly be said that Mr. Bird who occupied unit number three which was wholly within an area which had formerly been the dominant tenement of the easement over the applicants' land, when he parked his car on common property located on land which had never been part of that dominant tenement used the applicants' land for a purpose connected with the dominant tenement because he walked to and from his parked motor vehicle along the easement area. Neither could it be said in my view that any of the other proprietors by parking their motor vehicles off what had previously been resub. 3, the dominant tenement, could be said to be using the easement for a purpose connected with the land which had previously been resub. 3 merely because one or more of them may have occ~pied a dwelling unit located either wholly or partly upon what had previously been resub. 3, the dominant tenement. -- 14 of 34 -- 14 The only entrance to the respondents' land for the purpose of car parking is via Whiting Street. Entrance to the land when one simply wishes to proceed by foot in a most convenient way to the building seems on the evidence to be from Marine Parade. There is constructed a path giving access to the main entrance to the building which runs from approximately the centre of the Marine Parade frontage of the Residential block to the building. There is no evidence to suggest that people ever walked from their units around the back of the building for a distance which must be about two thirds the length of the northern boundary back from Marine Parade for the purpose of using the easement to.walk to the shops-next door when the building had been so constructed that they could walk out of the main entrance of the building a distance of about nine and a half metres to Marine Parade, turn left and walk to the shops immediately next door. There was no evidence to suggest any reason why people would ever have engaged in such an unusual activity or that the easement was in fact ever used for such a purpose. Mr. Bird also gave evidence that from time to time because of turning constraints vehicles manoeuvring in and out of garages constructed on the western side of the complex which seems to provide parking areas £or vehicles wholly off that part of the respondents' land which had previously been resub. 3, the dominant tenement in respect of the easement would cross over the boundary of the respondents' land onto that part of the easement giving access from Marine Parade to Lot 7 which is to the north of the former resub. 2. -- 15 of 34 -- 15 For reasons similar to those which led me to conclude that by making his way by foot from his garage or stationary vehicle parked wholly on that part of the respondents' land which had never been part of the dominant tenement in respect of the easement Mr. Bird did not use the easement for the purpose of passing to and from that part of the land upon which his unit was constructed .I take the view that the drivers of vehicles on that part of th.e respondents' land which was not part of the dominant tenement in respect of the easement could not by driving onto the easement be said to be exercising any rights which the easement gave to an occupier of that part of the respondents' land which had been re sub. 3, the dominant tenement. Put shortly, the backing of a car owned by a proprietor of constructed wholly upon what had been resub. 3, an apartment the dominant tenement, upon the easement when that car was being parked and driven on that part of the respondents' land which had been resub. 2 and not part of the dominant tenement could not be said to be a use by that proprietor of the easement for the purpose of free right of way and passage for the proprietor of that part of the Residential block which was the dominant tenement within the meaning of the registered easement. In my view there is no evidence that between November 1979 and March 1982 any of the proprietors of "Maricopa" ever used any part of the common property comprised within that part of the respondents' land which had formerly been resub. 3, the dominant tenement in respect of the easement in issue, for the purpose of "passing and repassing" with or without motor cars over and along the Local Shopping block. In my view the design and layout of -- 16 of 34 -- 16 the building and garages on the respondents' site make it most unlikely that the proprietors would ever have attempted to pass along that easement by foot from that part of the Residential land which had previously been the dominant tenement. The construction of a shed on the applicants' land together with the proximity of garage number three to the boundary and the construction of a high brick fence from Marine Parade down towards garages 11 and 12 make it most unlikely in my view that any proprietor would have attempted to drive down the easement. Indeed there is no evidence that any proprietor ever did attempt to drive down the easement. Nobody seems to have thought of using the eas·ement for the purpose of manoeuvring cars on it or for the purpose of gaining access to Marine Parade until late 1986 or early 198 7 when units 11 and 12 were sold and the purchasers found difficulty in parking their motor vehicles within those garages by reason of the space available between the northern boundary of the respondents' land and the doors of those garages. Nobody has suggested that any of the proprietors who may have lived in units 1, 2, 3, 4, 9 or 10 or indeed any of the other units for that matter in fact used any part of the easement in issue for the purpose of walking between their respective units and the shops next door. For the reasons I have already given to attempt to do such a thing would have been quite inconvenient and to my mind inexplicable. The only suggestion made by Mr. Bird is that presumably from late 1983 he, and others, sometimes havihg parked their car on that part of the respondents' land which was never the dominant tenement of the easement in issue or sometimes perhaps before driving the car -- 17 of 34 -- 17 away from where it was parked or stationary would "dive out of the garage door up through the easement to get a bottle of milk or something". In my view such a use of the land within the easement would be related not to the former dominant tenement resub. 3 but rather to that part of the respondents' land which was not part of the dominant tenement and was formerly resub. 2. There is no direct evidence that such a use of the easement was ever made prior to 27th March, 1982 although I am asked to infer from Mr. Bird's evidence that it probably was. I have come to the conclusion that on the balance of probabilities the easement over the applicants' land was never used by any of the proprietors of "Maricopa" for the purpose of passing to and from that part of the "Maricopa" common property which had previously been within resub. 3 the dominant tenement of that easement when granted. I have come to that conclusion upon the evidence placed before me with respect to the period between November 1979 and March 1982. It is abundantly clear that from mid 1985 the proprietors of "Maricopa" fenced off the easement with a very high fence and certainly no use by the respondents was ever made of the easement for any purpose lawfully or unlawfully from any part of the respondents' land from that time on. Much argument was addressed to me on the question whether by erecting the chain wire fence the respondents evinced an intention to abandon the easement. It was argued on behalf of the respondents that they had decided simply not to use it for a time and that there was an intention to install gates at some time in the future if and when it might be desired to allow more convenient access to -- 18 of 34 -- 18 persons who might occupy garages 11 and 12. As I have indicated this did not eventuate until 12 months after the fence was erected. In the light of the conclusion to which I have come however on the effect of the 1982 Town Plan, it is not of importance to consider at length the question of abandonment. While I do not take the view that the effect of the Town Plan is of itself determinative of the matters in issue between the parties it is my view that it is certainly a matter of significance - more significant to my way of thinking than the question as to whether the respondents could be said to have "abandoned" the benefits of the easement by fencing it off. The action of the respondents is clearly relevant when considering the need which they have for the easement. However, that seems to me to be not as important as considering whether assuming the easement has not been abandoned, they will in any event be able lawfully to use it for the purpose for which it was granted. This is clearly one of the matters which requires consideration under s . 1 81 ( 2 ) . Reference was made to what Adam J. said in Re: Robinson (1972) V.R. 278 and to the decision in Perth Construction Pty. Ltd. v. Mount Lawley Pty. Ltd. (1955) 57 W. A. L. R. 41 . Reference to the legislation in those cases however shows that it did not contain a provision similar to s. 181 (1)(b)(ii) and s. 181(2) of the Property Law Act in force in Queensland. The requirement of the Queensland legislation under s. 181 (1) that the Court consider, inter alia, whether the impeding of some reasonable user of the servient tenement by the continued existence of the easement would either - -- 19 of 34 -- 19 (a) not secure to the dominant tenement any practical benefits of substantial value, utility or advantage; or (b) be contrary to the public interest and under s. 181 (2) that it consider the relevant Town Plan, in my view so differs from the legislation considered in those cases as to suggest that the Queensland legislation assented to in November 1974 was drafted to avoid the effect of those decisions. Under s. 181 (1) and (2) of the Property Law Act, a Court may extinguish an easement upon being satisfied - (a) that by reason of change in the user of the dominant tenement or in the character of the neighbourhood the easement "ought to be deemed obsolete"; or (b) that the continued existence of the easement would impede some reasonable user of the servient tenement and that the easement in impeding that user - (i) does not secure to the persons entitled to the benefit of it any practical benefits of substantial value, utility or advantage to them; or (ii) is contrary to the public interest, and that money will be an adequate compensation for the loss or disadvantage, if any, which such person will suffer from the extinguishment of the easement; or (c) that persons entitled to the benefit of the easement may, by their acts or omissions, reasonably be considered to have abandoned the easement; or (d) that the proposed extinguishment of the easement will not substantially injure the persons entitled to its benefit. -- 20 of 34 -- 20 In determining whether a case comes within (a) or (b) and in determining whether an easement ought be extinguished, the Court must take into account inter alia the Town Plan as well as the period at which and context in which the easement was created and any other material circumstance. A good deal of evidence was called on behalf of the applicants to show that the Court could be satisfied of each of the matters referred to ins. 181(1) of the Act. Dealing firstly with the provisions of s. 181(1)(a), it is clear on the evidence that when the easement over the local shopping block was granted, the dominant tenement (then resub. 3) had constructed on it a single dwelling house. What is now that part of the residential site which previously comprised resub. 3 has constructed on it six residential units and part of four other residential units. Moreover the respondents · are owners as tenants in common of all the common property to be found on what was resub. 3 before it was amalgamated with resub. 2 to form the residential block. There has clearly been therefore a change in the user of the land which was the dominant tenement since the granting of that easement. The respondents called evidence to show that if the easement were available for the use of all 12 residential units now comprised within the amalgamated residential block, then the vehicles owned by the unit holders could obtain access from Whiting Street, which is the only source of access and egress at the moment, and egress to Marine Parade for those vehicles could be obtained via the easement in issue. If that were legally permissible, that would further increase the use of that easement. The legal effect of -- 21 of 34 -- 21 a substantial increase in the burden on a servient tenement resulting from a change in the nature and extent of user is uncertain. See South Eastern Railway Co. v. Cooper (1924) 1 Ch. 211 and White v. Grand Hotel Eastbourne (1913) 1 Ch. 113 which suggest increased burden will be permitted and Jelbert v. Davis (1968) 1 W.L.R. 589 in which views to the contrary are expressed. Apart from constraints imposed by the Town Plan there is no reason of course why persons occupying the six units constructed wholly within what was formerly the dominant tenement might not use the easement for gaining foot access to and from their units via the common property to Marine Parade by that easement~ It seems to me, however, that there would be a significant increase in the user involved in converting what was a right for the benefit of one single unit residence into a right for the benefit of six single unit residences - if not ten of such residences. For a discussion of "excessive user" see Graham v. Philcox ( 1984) 1 Q.B. 747 at p. 760 et seq. per Purchas L.J. To the extent that all persons entitled to make use of the common property on what was formerly resub. 3 have the right to use the easement the user would be even more significantly increased. I have already dealt with the effect of the Town Plan upon the use of the easement over the local shopping block for the purpose of the residential use of the residential block. I should also observe that similarly the use of the residential block for the purpose of local shopping is prohibited under the existing Town Plan, although there seems little doubt that the applicants' use of the easement over the respondents' land receives the protection given to a lawful non-conforming use. -- 22 of 34 -- 22 If a time comes when the purpose for which an easement has been granted can no longer be achieved, then in that sense the easement has become "obsolete": see Truman, Hanbury & Buxton & Co. Limited's application (1956) 1 Q.B. 261 at 272 per Romer L.J. The term "obsolete" means "no longer relevant to the circumstances presently obtaining": see Hunton (C. ) Ltd. v. Swire (1969) N.Z.L.R. 232 at p. 234 per Wilson. J. and Re Miscambles' Application (1966) V.R. 596 at 601 per Mcinerney J. I keep in mind the fact that no attempt has been made to use the easement since the erection of the wire fence upon the boundary between the applicants' and respondents' land in i985. As I have indicated, it is my view that it has never been used for any purpose in connection with the enjoyment only of that part of the dominant tenement which was within resub. 3 prior to its amalgamation with resub. 2 to become part of the residential block. I have dealt with this aspect of the evidence at some length already and will not repeat what I have said. In this case the respondents caused to be erected a fence preventing use of the easement for the purpose of passing and re-passing from the residential block in 1985. Since garages numbered 11 and 12 have been occupied, no effort has been made to make use of the easement. It was decided in 1985, on the evidence, to fence off access to the easement because the protection against trespassers which that would provide was thought preferable to ability to make use of the easement. For the principles upon which an easement ought be "deemed obsolete" I refer to Hunton (C.) Ltd. v. Swire (supra) at pp. 234-5. I conclude that the easement in issue ought be deemed obsolete. -- 23 of 34 -- 23 With respect to the provisions of s. 181(1)(b) it is clear on the evidence that the maintenance of the easement in favour of the respondents will restrict and impede the development of the local shopping block. The evidence indicates that although planning constraints would require the walls of a new building likely to be erected on the site to be constructed some metres away from the boundary between the local shopping block and the residential block, nevertheless to fully utilise the site it would be desirable to construct an underground car-park for the proposed development, the top of which would be so close to the boundary and such a distance above the present ground level (perhaps a metre) as to impede the use of the easement. In my view the development of the local shopping block to achieve its maximum potential by the provision of the maximum economically feasible underground car-parking space is a reasonable user of the land. I am also satisfied that the respondents, even if they could make any lawful use of the easement, have demonstrated by their past failure to attempt to use it for the purpose for which it was granted, that it has never had much value to them. In my view they could not lawfully make use of it at the present time for the reasons I have expressed and for all practical purposes the maintenance of the easement has no value, utility or advantage to them at the present time. The only way any conceivable benefit may accrue from its continued existence would be as the result of the Gold Coast City Town Plan at some time in the future being altered so that the respondents become able to use the easement for the same purposes as those for which the local shopping block may be lawfully used. There is nothing to -- 24 of 34 -- 24 suggest in the evidence that it is likely in the foreseeable future that the current Town Plan will be so altered. I am not persuaded that the respondents' easement over the applicants' land is contrary to the public interest, except in the sense that it impedes the reasonable and lawful user of the applicants' land for its full potential for the purpose for which it is zoned without at the same time, giving any immediate or foreseeable benefit or advantage to the respondents. I am not persuaded on the evidence that the respondents will suffer any significant loss or disadvantage should the easement over the applicants' land be extinguished - and particularly so when the applicants concede that the easement which they enjoy over the respondents' land ought be extinguished if they succeed in this application. If both easements are extinguished, then the only "disadvantage" to the respondents that I can detect is the fact that when the home unit building was constructed a brick wall was constructed upon the respondents' land on the southern edge of the easement which the applicants enjoyed over that land. If there is an extinguishment of both easements, then the respondents will be left with a long and expensive brick wall constructed about 1 .2 metres inside the boundary of their land. It is my view that adequate compensation can be made for that particular disadvantage. The question that arises under s. 181(1)(c) is whether by their acts or omissions the respondents may reasonably be considered to have abandoned the easement. Whether failure to use the easement between 1979 after the registration of the Building Units Plan and the construction of the fence in 1985 and -- 25 of 34 -- 25 the existence of that fence which has since its construction prevented any of the respondents from using it, apparently even if they wanted to, amounts to an abandonment, I think it difficult to decide. Whether or not an easement has been see Cook v. Mayor and 1 77. I ref er also to abandoned is a question of fact Corporation of Bath (1868) L.R. 6 Eq. Treweeke v. 36 Wolsley Road Pty. Ltd. (1972-1973) 128 C.L.R. 274 at p. 282 per McTiernan J. and per Mason J. at p. 302. In this particular case, evidence was given to explain away the construction of the fence in 1985, it being asserted that it was intended that at some time in the future, if necessary, gates could be constructed to give access from the residential block to the easement over the local shopping block for the benefit of persons occupying garages numbered 11 and 12. I was not impressed with this evidence. There is nothing in any of the contemporaneous records at the time it was resolved to construct the fence to suggest that this was so. There is some inconsistency in the evidence of persons allegedly involved in consideration of the construction of gates and I am not persuaded in all the circumstances that there was ever any expressed intention to alter the fence in the future so as to permit use of the easement. I take the view that the fence was constructed to provide security and to the extent that any thought whatever was given to the easement it was decided that security was preferable to the opportunity to use an easement which in fact had not until that time ever been lawfully used for the purpose of that part only of the dominant tenement which had the benefit of it. -- 26 of 34 -- 26 I am not persuaded however on the whole of the evidence that the respondents merely by fencing off the easement with a wire fence that can easily be modified, have abandoned it. I do however take the view that the action of the respondents in so fencing off access to the easement indicates in the clearest terms that at that stage in any event and indeed subsequently it was thought that the easement had no substantial value, utility or advantage to them. With respect to the provisions of s. 181(1)(d), I am persuaded, for the reasons I have already given, that the proposed extinguishment of the easement which the respondents have over the applicants' land will not substantially injure the respondents. It will not substantially injure the use which could lawfully be made of it to gain access to Marine Parade from only that part of the amalgamated residential block which comprised former resub. 3 because, having regard to the provisions of the Town Plan, they may not lawfully use the easement for any purpose connected with the residential use of the home units. Even if such a use had been protected by the non-conforming use provisions of the Town Plan for the City of Gold Coast, it is absolutely clear from the nature of the high brick fence constructed on the respondents' land on the edge of the easement enjoyed by the applicants over that land that for all practical purposes no use would be made of that easement by access to it gained from the Marine Parade side of its western end. As I have already observed, it is hard to imagine why even before the erection of the high chainwire fence in April 1985 anybody on the residential block would go to the trouble of -- 27 of 34 -- 27 walking upon that part of it which formerly comprised resub. 3 to a position from where they could walk around the western end of the brick wall for the purpose of then walking in an easterly direction down the easement to get to Marine Parade when the main entrance to Marine Parade from the residential block is a short distance from the front entrance of the building. In any event, for the reasons I have given I am persuaded upon the evidence that no lawful non-conforming use of the easement over the applicants' property by persons on the respondents' property entitled to make such a use of it ever came into existence. Under s. 181 (4) an order extinguishing or modifying an easement or restriction under subs. (1) may direct the applicant to pay any person entitled to the benefit of the easement such sum of money as it may think it just to award under one of two heads (but not both). One of the heads specified is:- " (a) a sum to make up for any loss or disadvantage suffered by that person in consequence of theextinguishment ---." For reasons I have already expressed, I take the view that the extinguishment of the easement over the applicants' land will not cause any present loss or disadvantage to the respondents. It will not cause a loss or disadvantage at the moment because the easement may not be used for the only purpose for which the respondents' land may lawfully be used, having regard to the constraints of the Town Plan for the City of Gold Coast, that is, for a residential use. The applicants' land may not as a matter of law be used for residential purposes. -- 28 of 34 -- 28 If the easement were to remain it is arguable, I suppose, that should there be an amendment or amendments to the Town Plan at some time in the future, the applicants' land may then be permitted to be used for a purpose for which the respondents' land may at that time lawfully be used having regard to the constraints of the amended Town Plan. The extinguishment of the easement at the present time would, of course, deprive the respondents of a contingent right to use the easement lawfully. On the other hand, it is conceded by the applicants that the easement over the respondents' land in respect of which the applicants' land is the dominant tenement should, as a condition of the extinguishment of the easement over the applicants' land, also be extinguished. The respondents did not, of course, argue against this contention, although for obvious reasons made it clear that the existence of the applicants' easement over their land was not really a matter of concern to them. It is perfectly clear upon the evidence that when 11 Maricopa 11 was developed on the residential block, the existence of the easement in favour of the local shopping block was a factor taken into account upon that development. The brick wall constructed from the Marine Parade frontage of the land runs in a westerly direction for a distance of about 23 metres, 1.2 metres south of the boundary between the residential block and the local shopping block, so as not to impede use of that easement by persons gaining access to and from the local shopping block. The major part of the wall was obviously constructed to protect the amenity of the ground floor units from the adverse -- 29 of 34 -- 29 effects of commercial and other vehicles travelling on and off the local shopping block. Had it not been for the existence of the easements at the time of the development of the residential block, there seems no reason why the wall in question would not have been constructed upon the boundary between the two blocks. Upon extinguishment of the easements the respondents will be left with a parcel of land with a large brick wall erected 1 .2 metres from its boundary, running from its Marine Parade frontage back to its car washing area, substantially enclosing an area about 23 metres in length by 1 .2 metres in width and in effect depriving the respondents of any enjoyment of it. Evidence was given by Mr. Jewell that the cost of demolishing the wall and constructing a new one of the same sort on the fence alignment and doing the necessary landscaping etc. for the sake of appearances would be about $10,000.00. I would certainly not contemplate ordering the extinguishment of the respondents' easement over the applicants' land except on the basis that it was part of an order for the extinguishment of both of what were in effect mutual easements created in 1970 with respect to that part of the residential block which was resub. 3 and the local shopping block. An interesting question is what "loss or disadvantage" will be suffered by the respondents in consequence of the extinguishment of the easement over the applicants' land to justify an award of compensation under the Act. In one sense the disadvantage with which the respondents will be left should both easements be extinguished will result -- 30 of 34 -- 30 more directly from the extinguishment of the applicants' easement over the respondents' land than it will from the extinguishment of the respondents' easement over the applicants' land. After all it will be the extinguishment of the applicants' easement over the respondents' land which will remove the only reason to have the brick wall constructed where it is on the respondents' land rather than on the boundary between the two blocks of land. On the other hand, the reason for the location of the wall 1 . 2 metres in from the boundary of the respondents' land is undoubtedly the existence of both easements and had the easement which the applicants seek to have extinguished not been granted to the owner of the old resub. 3 as dominant tenement, I infer that the easement in favour of the applicant over resub. 3 would not have been granted, and when resub. 3 was amalgamated with resub. 2 to form the residential block its development would have involved construction of the high brick fence on the boundary between the residential block and the local shopping block, rather than in its present location. I have come to the conclusion, with some hesitation, that I am empowered under ss. 181 (1)(b) and 181(4) of the Property Law Act to direct the applicants to pay to the respondents a sum of money to make up for the loss or disadvantage that will be suffered by them in consequence of the extinguishrnent of both easements resulting in the residential block being left with a large brick wall about 23 metres in length constructed 1. 2 metres to the south of its boundary rather than upon it. Prima facie, in my view, that loss and disadvantage can best be made up by directing that the respondents be paid the cost of -- 31 of 34 -- 31 demolishing that wall and re-erecting it on the boundary of the residential block and local shopping block upon the extinguishment of both easements. It is true that the respondents may decide not to bother shifting the wall. Obviously there would be good reason not to shift it pending any large scale construction work being performed on the applicants' land in the future. The wall may be a very desirable buffer between the applicants' site and the residential units at ground level on the residential block facing Marine Parade. Indeed it may be decided that it is not worth demolishing the wall merely to gain an additional 1 .2 metres in the width of the garden area in front of and to the side of the block of units. I propose however to adopt a fairly broad brush approach to this problem. Although there is no evidence of diminution in value of the residential block by reason of the effective loss of a strip of yard 1.2 metres in width for a distance of 23 metres - or perhaps a little more on the evidence - I take the view, having regard to the evidence of the significant prices paid for various of the units sold over the years, that its value would be at least reduced by the cost of demolishing the wall and reconstructing it to give the respondents the full use of their common property on the northern side of the residential block. It would be just to make such an award in spite of the fact that upon one view it is the extinguishment of the applicants' rights over the respondents' block which will lead to the inappropriate location of the brick wall upon that block. Counsel for the applicants has conceded that a significantly -- 32 of 34 -- 32 larger area of the applicants' block is affected by the easement which the respondents' hold over it. It is conceded that that easement runs from Marine Parade the full length of the southern boundary of the local shopping block and then the full length of the western boundary of that block to where it ends at Lot 7. I must confess to being somewhat uncertain as to the effect of the proviso contained in the grant of easement that the respondents' predecessors should "be entitled only to the full free and uninterrupted right of way and passage over the servient tenement for a distance of 150 links west from Marine Parade and not over the whole of the servient tenement as hereinbefore recited". Ignoring altogether the effect of the Town Plan one can only speculate upon the value of an easement to a dominant tenement and its burden on the servient tenement when the right to "full and free and uninterrupted right of way and passage" is restricted to only approximately one-half of the length of that easement from its commencement at Marine Parade. I do not propose however to devote time to this interesting, but I suspect rather theoretical problem. On the assumption that the respondents had an easement of some sort along the full length of the southern and western boundaries of the local shopping block obviously that block would be more valuable without it. Although there is no valuation evidence on this aspect of the case I infer that the absence of the easement across the southwestern corner of the local shopping block and along its western boundary would remove constraints upon the development of the block which will prove to be of significantly more value -- 33 of 34 -- 33 to the applicants than will be the relocation of the brick wall at the front portion of the respondents' property to them. I make the following orders:- 1. That Easement No. E53590 over resubs. 5 and 6 of subdivision 56 of Portion 14 as shown on Plan Catalogue No. 28583 and described in Certificate of Title Volume 3118 Folio 43 be extinguished; 2. That Easement No. 53589 over part of Lot 1 on Registered Plan No. 168652 and described in Certificate of Title Volume 5919 Folio 100 (being that part which was formerly described as sub. 3 of resub. 2, 3 and 4 of subdivisions 54 and 55 of Portion 14 and described in Certificate of Title Volume 2712 Folio 80) be extinguished; 3. That the applicants pay to the respondents by way of monetary compensation for disadvantage resulting directly and indirectly from the extinguishment of the Easement No. E53590 the sum of $10,000.00. With respect to costs of the application, although as a general rule an applicant may be required to pay the costs reasonably incurred by a respondent opposing his application, I have come to the conclusion that the nature of the case advanced to support the respondents' opposition to this application went beyond what was reasonable keeping in mind that general rule as to costs of which I assume the respondents were aware. In the circumstances I order that the applicants pay to the respondents two thirds of their costs of and incidental to the application to be taxed. I am unpersuaded that there is any reason why those costs ought be taxed other than on a party and party basis. -- 34 of 34 --