Laming v Jennings
Laming v Jennings  VSCA 335
The High Court recently dismissed an application for special leave to appeal from a Court of Appeal decision about easements by presumption of lost modern grant: Jennings v Laming  HCASL 120 (Bell and Nettle JJ).
Such an easement will be found where there is open and uninterrupted enjoyment of land for a period of at least 20 years that is not explained by an express grant of easement or permission to use the land.
Here, Jennings claimed a right of adverse possession, alternatively a prescriptive easement, as to part of the property of an adjoining neighbour, Laming: Laming v Jennings  VSCA 335 (7 Dec 2018).
Jennings claimed that he and his predecessors had used the Laming land as a “backyard” between 1986 and 2015, including by mowing and maintaining the grass, removing and planting trees, playing games, using furniture and erecting a clothesline.
The Laming land was created in 2012 from a subdivision of a larger block originally owned by Telstra. Laming acquired it in 2015. From time to time, Telstra employees cut the grass on the Laming land.
The trial judge dismissed Jennings’ claim for adverse possession but found a prescriptive easement “for the purposes of recreation” in his favour, based on extensive use of the Laming land since 1986. Laming appealed.
The Court of Appeal reiterated the requirements of an easement by prescription as set out in Sunshine Retail Investments Pty Ltd v Wulff  VSC 415
o the doing of an act by a person upon the land of another;
o the absence of right;
o knowledge of the person affected (knowledge requirement);
o power of the person affected to prevent it; and
o abstinence by that person from interference for such a length of time as renders it reasonable for the court to stop them from interfering: .
The appeal succeeded on two of four grounds. The first ground related to the knowledge requirement and the judge’s finding that Telstra had knowledge of user by Jennings and his predecessors. The Court of Appeal held that the judge had erred in finding that Telstra knew of the Jennings’ use of the Laming land. Jennings failed to establish that Telstra knew that the Laming land was being used for recreational purposes. Further, the observable state of the Laming land was not sufficient to give rise to constructive knowledge on Telstra’s part: -. The Court also held that Jennings could not rely on the presumption of knowledge that applies where there has been open use over a period of years. The presumption cannot be employed to attribute knowledge to an agent, where it is proved that the owner had neither actual nor constructive knowledge. The question whether the agent’s knowledge, or means of knowledge, binds the owner turns on the circumstances. Here, there was none: , .
The second ground of appeal related to the nature of an easement for recreation and whether it was too wide and uncertain to be recognised at law. While such an easement is recognised and permissible, the Court of Appeal found that the contexts in which it has been upheld were in respect of land which had a common or communal character: .
A central purpose of property law is to create certainty as to the rights and interests attaching to land. Even if “recreation” identified sufficiently what the holder of the easement was entitled to do, it was not clear how that entitlement would relate to the rights of the owner of the Laming land. The rights of unilateral recreation over private land without a communal aspect were too uncertain and productive of disputation. Accordingly, the easement failed: -.
The third ground of appeal, upon which the applicants failed, was whether the easement was unworkable due to inconsistency with Laming’s rights as owner of the land. Had the court found that the easement was sufficiently certain to be recognised at law, it would not have had the effect of conferring exclusive or joint possession or control of the disputed land on the dominant owner, or been inconsistent with Laming’s rights: .
It was noted that, if the court had found that the easement gave a right to use the disputed land as a backyard, that would be both too wide and impermissibly confer a right of possession over the Laming land: .
The fourth ground of appeal was that s 42(2)(d) of the Transfer of Land Act 1958 (Vic) only applies to easements subsisting at the time of registration. That provision carves out exceptions to the rule of indefeasibility for, amongst other things:
• rights subsisting under any adverse possession of land (s 42(2)(b)); and
• easements howsoever acquired subsisting over or upon or affecting the land (s 42(2)(d)).
The argument was raised on the basis that the 20 year period of uninterrupted user was still running when the land was registered: .
The Court did not reach a conclusion on the fourth ground. However, it set out some considerations that might inform resolution in the future, including:
• There is no authority on the precise issue.
• The phrase “howsoever acquired subsisting” in (d) (and not in (b)) might indicate that an easement must have already crystallised to be an exception to indefeasibility.
• The Torrens system is underpinned by a strong policy in favour of the integrity of the public register and statutory exceptions to indefeasibility require careful analysis.
• The doctrine may operate more unfairly in the case of a person who becomes registered proprietor during the period of 20 years’ user compared to a person who has remained registered for the entire period.
• The historical rationale of the doctrine has significantly diminished with the advent of modern systems for registration: -.
The outcome on the second ground of appeal indicates that easements for “private recreation” will not be recognised in Victoria without a greater expression of what the entitlement involves. Questions on the construction of s 42(2)(b) and (d) of the Transfer of Land Act await an appropriate vehicle for determination.