An implied easement of way under s 98 of the Transfer of Land Act 1958 (Vic) is not restricted to the purposes for which the dominant tenement was used at the time of subdivision; a change from residential to school use with approximately 30 students does not constitute excessive use. A servient tenement owner may fence along an easement but may not erect a gate that prevents reasonable access. A Magistrate may make a conditional order for payment of removal costs in default of compliance with a mandatory injunction to avoid multiplicity of proceedings.
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