Easements

1) Manny owns a lot of land in Castle Hill (lot 1). In 2019 Penny buys the adjoining lot (lot 2). Both lots are registered under theReal Property Act1900. Drainage pipes cross lot 1, connecting lot 2 and the stormwater drains which run along the main road, parallel to lot 2. These pipes are supported by two (connecting) registered easements. Easement A connects to Easement B at the mid-point between Lot 2 and the road. Easement A provides (inter alia) that the owners of the dominant tenement have: 'the full and free right and liberty at all times to enter upon to lay such drains and to connect such drains to any other drains as the grantee may from time to time see fit and thereafter forever to use the said drains freely to run and pass water and sewage through under and along the same'. Easement B provides that the owners of the dominant tenement have: 'the full and free right to use the drain for drainage and stormwater under and along lot 2'. In late 2021 the local council constructed new sewage easements next to the stormwater drains, parallel to lot 2. Manny now seeks to redirect the flow of sewage from lot 1 to the new sewage drains via the easements under the servient tenement. Penny has now come to you for advice. a) Does Manny has the right to redirect the flow of sewage from lot 1 to the new sewage drains via the easements under the servient tenement? Would your answer be any different if: b) Easement B provided for the right to use the drains for "stormwater drainage"; or c) if the easements simply provided that the owners of lot 1 had the right to lay "drainage pipes"?

Please answer by three steps:

A. Key legal Issues B. Principles, Authorities and Application C. Conclusions, Remedies and Advice

reference Statute Conveyancing Act1919 (NSW), ss 23B, 23C, 23E, 47, 49, 88, 88B, 88K, 89, 181A(1) Real Property Act1900 (NSW), ss 42(1)(a1), 42(1)(b), 46, 46A, 47, 51, 52. o ss 42(1)(a1), 42(1)(b) Cases What is an Easement? Creation of Easements Re Ellenborough Park[1956] 1 Ch 131. *Clos Farming Estates Pty Ltd v Easton(2002) 11 BPR 20, 605. Moncrieff v Jamieson[2007] 1 WLR 2620. *Registrar General v JEA Holdings (Aust) Pty Ltd[2015] NSWCA 74. *Stolyer v Towers[2018] NSWCA 6 Wheeldon v Burrows(1879) 12 Ch D 31. Campbell v Hamilton[2019] NSWCA 22 Easements as an exception to indefeasibility *Castle Constructions Pty Limited v Sahab Holdings PtyLtd [2013] HCA 11. McGrath v Campbell(2006) NSW ConvR 56-159. Williams v State Transit Authority of New South Wales(2004) 60 NSWLR 286. Interpretation and Extent of Use *Westfield Management Ltd v Perpetual Trustee Co Ltd(2007) 233 CLR 528. Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Neighbourhood Association DP No 285220 v Moffat[2008] NSWSC 54. Brydall v The Owners of Strata Plan66794 [2009] NSWSC 819. Extinguishment, Abandonment and Remedies Treweeke v 36 Wolsely Rd(1973) 128 CLR 274.