Interpreting Easements

The recent decision of Multiplex Bluewater Marina Village Pty Ltd & Anor v Harbour Tropics Pty Ltd [2016] QSC 99 provides guidance for interpreting the terms of easements. It was decided that although only the easement document without the aid of extrinsic material can be considered, reasonableness must also be applied so that the rights granted can be utilised practically.

Harbour Tropics Pty Ltd as trustee for the Bluewater Trust (“Harbour”) purchased from Multiplex Bluewater Marina Village Pty Ltd (“Marina Village”) a lot adjoining a marina containing marina berths. The marina was operated by Multiplex Bluewater Marina Lot Pty Ltd (“Marina Lot”). Harbour granted an easement to Marina Lot for access to marina facilities which included a car park with showers, toilets and laundry with washing machines and dryers. The easement gave Marina Lot:

…full and free right liberty and license from time to time and at all times hereafter to enter upon and to pass along the Servient Tenement, with or without vehicles, for all purposes connected with the use and enjoyment of the marina facilities to the extent that the grantee and the marina berth users will have free and uninterrupted and unimpeded right to access and use of the marina facilities at all times.

It appears some marina berth users park vehicles in the car park for extended periods to access and sail away on their boats at the marina berths. As such, Harbour wanted to impose a “Car Park Management Plan” on all users with restrictions including a time limit for car parking and rights to tow away vehicles parked in excess of the limit. Marina Village and Marina Lot sought a declaration that they are entitled to unlimited access to the marina facilities and Harbour sought a declaration that was the direct opposite of that sought by the Marina Village and Marina Lot.

Harbour argued that that the easement should be narrowly interpreted so that the marina berth users had the right to temporarily park in the car park for the purpose of accessing their boats and marina facilities, not a right to permanent parking. The narrow interpretation was rejected by the court as it would give marina berth users access to their boats without consideration to the use of the boats away from the marina berths when the parking rights would mainly be utilised.

The court found that the easement granted access to and from the Marina Lot and access to and from the use of the marina facilities. Further, the description of access and use of marina facilities as ‘free and uninterrupted and unimpeded’ has to be read to accommodate rights of Harbour to use the easement area at same time and the concept of reasonableness that applies to both parties. On this basis, the court adjourned the application so that the parties can negotiate the terms of the Car Park Management Plan.

This decision provides a good guidance for interpretation of easements and is also a reminder to take care and seek advice when granting easements to ensure that the parties’ intentions are correctly reflected and that the terms are reasonable and practical.

Gavin McInnes


Brisbane 07 3009 8444
Sydney 02 9307 8900

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