Roads and Easements of Way


New case alert

In February this year, the Supreme Court in Valmorbida v Les Denny Pty Ltd[1] decided a fascinating new case on an aspect of road law that courts rarely consider – the scope and form of an easement established by lost modern grant.

In this case, a part of freehold land known as Stevens Court was owned by a developer, Les Denny Pty Ltd, but had been used over a long period of time by an adjoining owner, Mrs Valmorbida, to access her residence and for car parking.

In 2023, the Court previously found that the defendant’s land was subject to an easement of way established from long use under the doctrine of lost modern grant.  In the present proceeding, the plaintiff sought an easement based on a marked photograph identifying a vehicular pathway and associated hatched carparking areas, while the defendant sought an easement comprising a 3 m rectangular strip along the length of Stephens Court [7]-[8]. The Court was, therefore, required to consider whether an easement granted by an assumed lost grant require an order as to the precise dimensions of the easement [13].

The Court observed that the doctrine of lost modern grant did not operate like adverse possession, where a precise area of land is exclusively occupied over a long period [14]. Gorton J instead held that the doctrine operated ‘by assuming, as a legal fiction, that an easement has been granted that explains or justifies the prolonged use’ and ‘may be established by long use without that use having always been over the precise same path through the servient tenement.

Although the court had little evidence before it of the precise areas used for access over the years, it considered the ‘best evidence of actual use’ to be plans prepared 11 years previously when the residence was being renovated, which showed an ‘existing earth driveway’ and ‘sleeper retaining wall’.

The Court declined to declare any plan setting out any specific easement path and noted that ‘there is no reason to assume the existence of a grant that contains unnecessary detail or that restricts, more than necessary, the rights of the owner of the servient tenement to an identified path; because a party may enjoy a right of way over another’s land without the precise path being forever fixed‘ (citations omitted).

Justice Gorton relied on the NSW Supreme Court decision in Maurice Toltz v Macy’s Emporium,[2] in which a first floor commercial tenant was granted an easement ‘not over any specified or identified route, but just generally across intervening area’ over a ground floor furniture retailer.[3]

In obiter, Gorton J noted that the registered proprietors would ‘remain able to do such works on their land as they wish so long as they do not unreasonably restrict the right (of the adjoining owners and their invitees) for access to their front and rear gates and for reasonable parking.’ [17]. The Court, ultimately, ordered a declaration that the Denny land was encumbered by a right of carriageway and a right to park vehicles on it [35]. The declaration defined the carriageway right as extending from a particular street ‘to the present front and rear gates on the boundary of the land (of the title to the adjoining residence)’ [53].

Cameron Algie, B.A., B.Mus., L.L.B.(Hons)
Dr Leonie Kelleher OAM, B.A., L.L.B., Dip.TRP, MEI, PhD.

13 March 2024

Copyright © Kellehers Australia 2024.

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[1] Delma Anne Valmorbida v Les Denny Pty Ltd (ACN 652 661 955) & Ors (according to attached schedule) [2024] VSC 51, S EC1 2022 01764 (21 February 2024) Gorton J.

[2] [1970] 1 NSWR 474.

[3] Ibid, 480 (Hope J).