(New South Wales Court of Appeal) A question arose whether a right to enter servient land, to carry out works of viticulture and to harvest the grapes and sell them was a right capable of existing as an easement. The judge at first instance held that there was no easement creating an interest in land. The Court of Appeal agreed holding that not only were the rights claimed novel but that they breached what is fundamental to constituting an easement in two respects. First, the connection between the benefited land and the supposed servient tenement went no further than to render the latter but ‘a convenient incident to the exercise of the right’. As it is put in the headnote ‘The imperatives of the commercialising of the viticulture operation cannot be seen as necessarily supporting a finding that the rights conferred do sufficiently accommodate the dominant tenement’. Secondly, the owners of the servient tenement were left with mere rights of residual recreational activities that are totally subordinated to the overarching rights of Clos Farming Estates. The rights of the servient owner were so attenuated that they no longer met the description of exclusive possession.
Ms McAllister said that in this context ‘accommodation’ firstly required that: ‘there be a natural connection between the dominant and servient tenement. The right must be reasonably necessary for the enjoyment of the dominant tenement and not merely confer an advantage on the owner of that tenement, as would a mere contractual right.’
Judges:
Ms McAllister
Citations:
[2002] NSWCA 389
Links:
Jurisdiction:
Australia
Cited by:
Cited – Polo Woods Foundation v Shelton-Agar and Another ChD 17-Jun-2009
The court considered whether the claimant had established a profit a prendre against the defendant neighbour’s land in the form of a right of pasturage, acquired either by lost modern grant or by prescription.
Held: The appeal succeeded, but . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 06 December 2022; Ref: scu.408428
