Body Corporate No 413424R v Sheppard [2008] VSCA 118

What the court decided

Dodds-Streeton JA gave the only substantive reasons [2], [91]. Buchanan JA and Osborn AJA each agreed with those reasons [1], [92].

A judge of the Trial Division had refused the body corporate's claim to implied easements over the penthouse apartment of Mr and Mrs Sheppard, principally a right of way to the roof [2]. The building's plant is on the roof, and unless an owner on an upper level allows access, service personnel must walk up the fire stairs from the ground floor [3]. The body corporate ultimately sought a right of way to the roof through the apartment's laundry and two rights of way to its balconies [19].

Subject to subsection (3), section 12(2) implies, over the land it lists (including land on a plan that says the subsection applies), easements and rights necessary to provide support, shelter or protection, services, rights of way, light and maintenance of eaves, for the benefit of each lot and any common property [21]. The implication arises only if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property [21]. Dodds-Streeton JA called these the first and second conditions, and both must be satisfied [22], [67]. It was common ground that the claimant bears the onus on both, and it was not ultimately disputed that section 12(2) applied to the apartment [46].

The first condition asks whether the easement is necessary for the reasonable use and enjoyment of the property other than the property to be burdened [64]. On appeal the body corporate had argued, contrary to its position at trial, that the first condition looked at the burdened property [47], [64]. The second condition is directed to the land other than that which the easement benefits [71]. It looks only at the property subject to the easement, not at all the property globally [88].

The word necessary "bears its ordinary meaning of ‘essential’", but it is read in the composite phrase, where it is "qualified by the broad concept of reasonable use and enjoyment" of the benefited property [80]. What must be necessary is the easement rather than the function it secures [80]. The inquiry may weigh the effect of losing the function and the cost or detriment of other means [80].

The trial judge was correct that the easement must be "essential to achieving the specified function", in the sense that no alternative means of achieving it is feasible or reasonably available [81]. Physical factors, legal restrictions, safety and cost are all relevant [81]. The mere possibility of an alternative does not prevent the first condition being met, but a reasonable alternative involving some inconvenience or additional cost does [82]. The Court rejected the body corporate's argument that necessary meant substantially preferable, a test drawn from cases on section 88K of the Conveyancing Act 1919 (NSW), which is in different terms [74]. The trial judge correctly treated the uncommunicated intention of the architect and the developer's representative as inconsistent with some of the claimed easements and of limited relevance [77]. The opinion or intention of architects or developers, "if clearly established, might, in an appropriate case, constitute relevant evidence", but "it is for the court to determine whether the statutory test is satisfied" [78].

The trial judge was entitled to find that roof access had been, and would remain, readily available by other means, at greater cost and with some risk to service personnel while avoiding other risks [83]. In the alternative, the claim would fail even on the body corporate's construction, because the easements were not substantially preferable for the use and enjoyment of the Sheppards' property [84].

On the second condition, the easements were inconsistent with the reasonable use and enjoyment of the Sheppards' property [90]. The number and frequency of the visits, the ambit of the route through key private living areas and the carrying of equipment and chemicals through them would be "intrusion of a degree and nature wholly incompatible" with a private residence [90]. The access could also pose an unacceptable risk to the security and privacy of the occupants [90]. The body corporate argued that a global benefit could "outweigh a very considerable burden on the property subject to the easement" [86]. It also argued that overuse could be regulated [87]. Even on that construction, the easement had at a minimum to be consistent with the reasonable use and enjoyment of the burdened property, and it was not [89]–[90]. The schedule of visits was acknowledged and no modification was proposed; in that context the distinction between existence and use of the easement was "chimerical" [90]. The claim therefore failed on each condition [83], [90], and the Court dismissed the appeal [1], [91]–[92].

Why it matters

The decision means that the statutory implication will not arise merely because an easement offers a cheaper or more convenient route than a reasonable existing one [82]. A body corporate needing access through a private lot for building services would, I suggest, do better to secure it expressly; here, uncommunicated intention was of limited relevance [77]. Where a claim under the section is pursued, the evidence should deal with each alternative, its cost and safety and its burden on the occupants of the lot [81], [90]. The Court construed the provision as it then stood, and readers should check the current text of the Subdivision Act.

Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.