An easement for right of way may be deemed obsolete under s 89(1)(a) of the Conveyancing Act 1919 (NSW) where the combination of prolonged non-use, physical obstructions, planning and traffic restrictions making the original purpose impossible and illegal, and alternative access demonstrates that the object of the easement is incapable of fulfilment or serves no present useful purpose. The subjective value attributed to the easement by the dominant tenement owner as a bargaining tool or selling point does not defeat an otherwise established case for extinguishment. Expert evidence that assumes the easement is capable of present enjoyment carries very little weight where that is the very matter in issue.
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