Case Note: Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45

I discovered Harris v Flower (1904) 74 LJ Ch 127 over a decade ago.  It was a bit of a disappointment.  Property I owned at Milton, a narrow, long and rather small lot, had the benefit of a registered easement in its favour over about 10 perches of a neighbour’s land.  That neighbour’s land adjoined the rear boundary of my lot.  As my house had basically been built on the front boundary and it was almost as wide as the lot, vehicular access to my lot was not possible other than via the easement; which, in effect, consisted of a long driveway from a road to the rear boundary of my lot.  With this easement, my lot took on a typical battleaxe shape.  The easement, however, extended beyond the rear boundary of my lot, in that it continued along the rear boundary of my adjacent neighbour’s land.  (If you like, the handle of the battleaxe continued above and beyond the blade.)  My adjacent neighbour’s land did not have the benefit of the easement.  As the terms of the easement permitted use by a licensee of the owner of the dominant tenement, I wondered whether I could grant a licence to my adjacent neighbour, permitting him to use the easement for vehicular access to his lot.

Harris v Flower answered my question.  I could not do this.  The general rule, for which Harris v Flower is authority, is that a right of way may only be used for gaining access to the land identified as the dominant tenement.

Harris v Flower was recently applied by the High Court in Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45.  There, the question was different to the question concerning my easement.  The question before the High Court was whether an easement could be used to go to the dominant tenement and then go from it to further land and then return across the dominant tenement and the easement.  Affirming the decision of the NSW Court of Appeal, the High Court held that the easement in the case, properly construed, did not permit such a use.  At [30] the High Court said:

The trial judge (Brereton J) had reached the contrary conclusion.  While his Honour had acknowledged that Harris v Flower stood for the proposition that “use of an easement cannot be extended, beyond the scope of the grant, to impose a burden greater than that which the servient owner agreed to accept”, he had found that it is not in excess of the grant to use a right of way to access the dominant tenement for those purposes that were contemplated at the time of the grant, and had admitted extrinsic evidence going to whether the purpose for which the appellant contended was in contemplation.  The parties to the appeal were not the owners of the lands in question when the easement was created.  The High Court disagreed with the trial judge’s approach to construction, stating at [37]:

The decision is of general significance for construing registered instruments.

Craig Wilkins