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In Rosedale Farm (NSW) Pty Limited  NSWSC 1321 an easement used for a period of 46 years, providing the only convenient access to a town was extinguished after a period of non-use of about 35 years. In this case it was deemed impractical to serve all the dominant tenements, those who gained the benefit of the easement, as there was over 100 of them. Instead an advertisement was placed in the local press, which ultimately was not responded to, and the plaintiff sought a letter from the Local Council supporting the extinguishment of the easement to allow a substantial redevelopment of the property. The Court found that the original purpose of the easement was no longer relevant and was displaced by a new access road. The Court could exercise its discretion for three reasons outlined in the Conveyancing Act:
It is noteworthy here that the court failed to make reference to a provision in the Act that allows the extinguishment of an easement after a period of non-use of 20 years. The court instead looked at the purpose of the easement itself.
In Betty Campbell v Peter Douglas Baigent & Ors  NSWSC 1348 it was held that a 40 year old metropolitan right of way for a driveway which had never been used would be allowed to stand. The plaintiff was not calling for extinguishment but merely a reduction in size for the unformed portion of the access way which was unsuitable to be used in a widened version of the existing driveway due to the land itself. Despite expert evidence in support of this, the Court held that the existence of the land itself could possibly be of benefit to the dominant tenements in the future and as such, along with the failure of the plaintiff to serve notice of the proceedings on the owner of the dominant tenement was enough to refuse the exercise of the discretion. The court applied the same three tests as in Rosedale but noted that in this case the plaintiff failed.
Clients should be aware that while on the face of it an easement may seem to be unused, this will not necessarily mean it will pass the statutory tests. It is also clear that the courts will be cautious in exercising any discretion in this area.