Published: Fri, 12 Oct 2018
Clos Farming Estates Pty Ltd v Easton  NSWSC 525
Property law – Easements – Right of Way – Novel Easement
Clos Farming owned several lots including Lot 86 that was situated on vineyard estate land. The Eastons owned lot 27. There was an easement that purported an “Easement for Vineyard” which was expressed to benefit Lot 86 and to burden (among others) Lot 27. Clos Farming lodged a caveat against the Eastons, claiming that he had a caveatable interest in their land for the use of the right of way. The Eastons cross-claimed, holding that the Easement for the Vineyard owned by Clos Farming was not valid and sought the removal of the caveat.
Whether the easement accommodates the dominant tenement and should be considered in relation to the lot owned by Easton, with the benefit of all the easements and restrictions in its favour, over all lots including lot 27.
The easement created was found not to be a valid easement. There must be nexus that exists in a real and sensible way between the nature of the alleged dominant tenement and the nature of the right granted. It was not enough that the land should be used as a means of convenience to exercise such rights. It was also found that the restriction in the conveyance of the land was extremely wide and thus required consideration of whether such a restriction amounted to an inconsistency with the ownership of the servient owners, the Eastons. Further, there was no authority case law that entitled the dominant owner to go on to the servient owner’s land, cultivate it and take the grapes or crops, so no easement could be considered valid, even on its own rare novelty. An order was made for its removal and the appeal was dismissed.
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