Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. STERN JA: I gratefully adopt the summary of background matters set out by Griffiths AJA. I agree with his Honour's judgment and with the orders proposed. My additional observations as to the key issues that arise should not be read as detracting from anything said by Griffiths AJA.

2. For my part, the appeal resolved into essentially three issues. First, the proper construction of the easement for garden use (the Easement) in the s 88B instrument registered on 16 December 2003 (the Registered Instrument). Second, the proper approach to determining whether the rights conferred by the Easement amount to a right of joint occupation or substantially deprive the servient tenement holder of proprietorship or legal possession such that they are not capable of forming the subject matter of an easement: the second question to be asked for the purpose of the fourth condition for the validity of an easement established in In re Ellenborough Park [1956] Ch 131 at 164 (Evershed MR), which has been consistently applied in Australia, most recently in Theunissen v Barter [2025] NSWCA 50 at [140] (Kirk JA, Mitchelmore JA and Griffiths AJA agreeing). For convenience, I will refer to this condition of validity as the "ouster principle". Third, whether the Easement is invalid as falling foul of the ouster principle.

3. As to the first issue, construction, I agree with Griffiths AJA that the question of construction is anterior to that of "reasonable use", as that question depends upon the proper construction of the Easement. Like Griffiths AJA, I would find that the primary judge erred in construing the Easement as conferring a right upon the appellants, as dominant tenement holders, to use the area of the Easement for general recreational purposes such as entertaining. As set out in the Registered Instrument at cl 1, the Easement undoubtedly confers upon them an exclusive right to garden (including to undertake the activities of growing grass, plants, shrubs and trees together with any work associated with establishing, maintaining and replacing such vegetation), to undertake activities of paving and landscaping and, for those purposes, to store equipment, implements and materials. However, the Easement does not in its terms go beyond that. Whilst the Easement would clearly confer an ancillary right upon the appellants to go onto the land for the purpose of exercising the rights expressly conferred, and the right to garden (as set out above) could itself be described as a right to use the area for one form of recreation, being gardening, it is a step too far to say that this includes an exclusive right to use the area of the easement for other recreational purposes.

4. There are three textual considerations which support this conclusion.

5. First, the Easement does not, in its terms, confer any right upon the appellants to use the land the subject of the Easement as their garden or for general recreational use. Rather, it expressly confers a right upon the appellants to undertake particular activities upon the land. It would undermine certainty to construe the Easement as conferring a plethora of recreational rights going beyond those expressly conferred or ancillary to such rights.

6. Second, the Easement says nothing about recreational rights over the land beyond the rights described above. Had it been the intention of the parties to confer a general right of recreation upon the appellants, they could readily (and presumably would) have said so.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f523f19b38e4e032238ca)

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