The interesting recent Queensland Supreme Court case Weigal v Toman has reopened the debate about the fundamental nature of an easement and in particular the status of easements providing for storage or the parking of vehicles. Case law differs in relation to whether these types of easements could be considered to satisfy the accepted Re Ellenborough Park indicia to be included within the category of valid easements. Case law suggests that easements that grant overly extensive rights to the owner of the dominant tenement take the easement beyond what is contemplated by an easement but authority differs as to where to draw that line. This article will discuss this unresolved controversy and seek to parse out the underlying principles behind this debate. It is suggested that conservatism derived from the numerus clausus principle has stymied acknowledgement of these types of easements. Rather than revealing some grant drawing upon issues of practicality and convenience that has tended to create inconsistency in judicial approaches to this issue. Although this may provide a just result in particular circumstances it does not assist the process of development of clear legal principle. This article will argue for a less stringent application of the numerus clausus principle that allows the creation of valid easements for parking and storage subject to criteria that acknowledge the fundamental nature of easements. This conclusion is bolstered by some recent and significant authorities that confirm this is the direction the law is taking.
|Title of host publication||Property and security|
|Subtitle of host publication||Selected essays|
|Editors||L B Moses, B Edgeworth, C Sherry|
|Place of Publication||Sydney|
|Publisher||Thomson Reuters (Prous Science)|
|Number of pages||14|
|Publication status||Published - 2010|