In Valmorbida v Les Denny Pty Ltd [2023] VSC 680, Justice Gorton confirmed that prescriptive easements can still be established in Victoria.

Prescriptive easements, or the doctrine of the lost modern grant, is a legal fiction established whereby after 20 years of continuous use of another’s property, the law will assume a right to use that property had a lawful beginning. As Justice Gorton explained: “… if a person had notice of the use, and did nothing to prevent it for 20 years, then, just as if there were a statutory limitation period, they could no longer be permitted to complain if the use were to become permanent. A ‘lapse of time accompanied by inaction, where action ought to be taken’, may confer a right not previously possessed.”

Justice Gorton found that the law in Victoria, at least for the time being, continues to recognise prescriptive easements:

“The Court of Appeal in Laming v Jennings raised the possibility that the accepted notion that an owner of a burdened tenement is bound by the acquiescence of this or their predecessors of title might have to be reconsidered. I consider that accepted notion to be in accordance with the principles that apply to the doctrine and that it should continue to apply for so long as the doctrine remains available. But, in any event, as a trial judge hearing this matter at first instance, it is a notion that I must accept. Equally, the Court of Appeal in Laming v Jennings suggested that there may need to be a new approach to this area of law in light of the diminishing acceptance of ‘the historical rationale of legal fictions’. In both these respects, weight would have to be given to the fact that the Victorian legislature, in contrast to Tasmania, has not decided legislatively (at least explicitly) to oust the principle of the lost modern grant with its attendant common law principles and so some caution might have to be exercised before the Courts decide to effect substantial changes. Again, however, as a trial judge hearing this matter at first instance, I must apply the law as it currently is.”

In a subsequent decision on the precise form of the easement created, Justice Gorton found that the precise route of the carriageway easement might change from time to time, provided that the plaintiff’s access and ability to park was maintained.