Legal Case Summary
Clos Farming Estates Pty Ltd v Easton and another [2001] NSWSC 525
A purported vineyard easement failed because it did not benefit the designated dominant land in the required way and left the burdened owners without meaningful control of their farming land.
Facts and background
Le Clos Verdun was a residential and vineyard estate in New South Wales. The development comprised 80 residential lots and eight other lots. Each residential lot included a residential part and a separate farming part. Graham Easton and Stephen Hibbert owned Lot 27. Clos Farming Estates Pty Ltd retained Lot 86, which contained farm-related buildings and was used to store machinery.
An instrument registered under section 88B of the Conveyancing Act 1919 (NSW) created an elaborate scheme of rights and restrictions. The disputed “Easement for Vineyard”, called the Fourteenth Restriction, purported to benefit Lot 86 and burden the farming portions of the residential lots. It authorised entry with machinery, vineyard establishment, planting, cultivation, harvesting and sale of produce. The holder could deduct specified farming and selling costs from the proceeds.
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Separate contractual arrangements for farm maintenance and grape purchases had expired. Clos Farming nevertheless claimed continuing rights under the registered instrument and lodged a caveat against Lot 27. When Easton and Hibbert sought its removal, the company asked the court to extend it. The owners cross-claimed for a declaration that the vineyard easement was invalid.
The issues
Bryson J considered whether the claimed rights genuinely accommodated Lot 86 and whether their effect on the burdened land was compatible with an easement. He also examined an alternative argument that the arrangement created an interest resembling a profit à prendre, a right to take certain things from another person’s land.
A further dispute concerned the claimed right to carry unpaid farming costs forward and deduct them from later harvests. The validity and continued operation of the caveat required separate consideration.
Why the vineyard right was not an easement
The judge applied the principles discussed in Re Ellenborough Park. An easement had to benefit the dominant land through a real connection with its use or enjoyment. A benefit to a business or to the owner personally was not automatically enough. Commercial use could be relevant, but it still had to provide the necessary connection with the land.
Lot 86 was considered together with the other rights attached to it, rather than in isolation. Even so, the evidence did not establish that the extensive farming rights over Lot 27 accommodated Lot 86. Buildings on Lot 86 might make it convenient for operations, but convenience alone did not establish the required relationship. Counsel’s description of a farm-management business conducted there went beyond the evidence.
The breadth of the rights created a second problem. Farming activities on the burdened land were placed under the dominant owner’s control. Easton and Hibbert could not meaningfully cultivate their land if doing so conflicted with that owner’s activities, and their remaining opportunities for recreation were largely nominal. The scheme reduced their ownership of the farming part to a position without practical control. It therefore went beyond what an easement could achieve.
The defect was not simply that no identical easement had previously been recognised. Bryson J accepted that easements could develop with changing circumstances. Nor did he treat the instrument as invalid merely because its wording was vague: its extensive operation was reasonably clear. The difficulties lay in the lack of accommodation and the excessive interference with the servient owners’ proprietorship.
The alternative interest and harvest costs
The proposed profit-à-prendre analysis also failed. The instrument authorised an ongoing process of establishing, cultivating and harvesting a vineyard, rather than merely taking natural produce or part of the land. Bryson J held that the cultivated grapes and other crops, together with the extensive authorised activities, fell outside that concept. The instrument was intended to create a legal easement, and its terms did not support recasting it as a licence coupled with a grant.
On the wording of the cost provisions, deductions related to the particular harvest concerned. Even on the proposed instrument’s own terms, it did not permit undeducted losses from an earlier harvest to be charged against later proceeds.
Decision
Judgment was given for Easton and Hibbert on the company’s claim. On their cross-claim, the court declared that the purported vineyard easement was invalid insofar as it burdened land in the deposited plan. Further consequential orders and costs were reserved.
The judge had already ordered the caveat’s removal at the conclusion of argument. Its continuation was unjustified independently of the easement’s invalidity: the company had not identified a proper basis for impeding dealings with the land. The eventual ruling on the easement supplied an additional reason for removal.
Judgment: [2001] NSWSC 525, Supreme Court of New South Wales, Equity Division, Bryson J, 28 June 2001.
