Question 2 Henry owns a lot of land in outer Sydney (lot 1). In 2012, Jacob buys the adjoining lot (lot 2). Both lots are registered under the Real Property Act 1900. Drainage pipes cross lot 2, connecting lot 1 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 1 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 stormwater drainage under and along lot 2'. In 2011, the local council constructed new sewage easements next to the stormwater drains, parallel to lot 2. Henry sought to redirect the flow of sewage from lot 1 to the new sewage drains via the easements under the servient tenement. Jacob has come to you for advice. He does not believe that Henry has the right to do this. Advise Jacob. Advising: Jacob Issue: Does Henry have the right to redirect the flow of sewage from lot 1 to the new sewage drains via the easements under the servient tenement? Authorities: S 23B CA: An easement must be created by deed if it is to be effective at law $ 46 RPA: An express grant of an easement at law is affected by registration of a dealing in an approved form $ 47(1) RPA: The Registrar-General shall, in addition to any other recording required by the Act, record particulars of the dealing creating the easement in the folio of the Register of both dominant and servient tenements S 88K CA: the grant of the easement must be 'reasonably necessary for the effective use or development of the land to be benefitted Re Kindervater [1996): The continued use of the word 'necessary' means something more than mere desirability or preferability over the alternative means available. It is always a matter of degree. White v Grand Hotel, Eastbourne Limited [1913]: Where an easement is created and in writing, the extent of use depends upon the construction of the grant. If the grant is widely expressed, the court will give the grant its full meaning. The court will not cut down the extent of use by reference to the use of the dominant tenement at the time of the grant