Question 3

An easement cannot rob the owner of the servient tenement of the reasonable use of their land. In Weigall v Toman [2006] QSC 349 the judges collates a test of exclusivity. Describe the elements of this test and apply it to the following circumstances.

Two lots were created in 1932 both with legal access to a road. The neighbourhood however was quite hilly and the road to the south was only constructed to approximately the extension of the common boundary and as a result Lot 6 was accessed by stairs up from the public road. At some point in the 80s the owner of Lot 6 constructed a driveway shown below to gain access to the constructed road to the south. The owner of Lot 5 made no objection at this time. In doing that she cut a steep bank on the north‐western side of the driveway. Both properties changed hands, Lot 5 in 1993 and Lot 6 in 1999. At or around 2015 the owner of Lot 6 commenced a physiotherapy practice and constructed a small car park in the back of Lot 6. The owner of Lot 5 became annoyed and the increase traffic on the driveway and requested that the owner of Lot 6 no longer use the driveway. The owner of Lot 6 said that it was not possible for clients of limited mobility to use the stairs from the eastern road and so refused to limit the use of the driveway. The owner of Lot 5 sought to stop the owner of Lot 6 using the driveway and the owner of Lot 6 replied by asserting that a prescriptive right of way had been established and he therefore had an easement for access. Advise the owner of Lot 5. 

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