CITY OF BELMONT -v- SALDANHA [2016] WASC 37 (11 February 2016)

Supreme Court of WA|2016-02-11|Before: Allanson J

1 ALLANSON J: The defendants are the registered proprietors of 337 Sydenham Street, Belmont (No 337). They were registered on the title as tenants in common in equal shares on 8 August 2014. There are two encumbrances on the title, including an easement granted to the City of Belmont and registered on 9 July 1993.

2 The City has authorised the occupiers and invitees of Lots 2 and 3, the rear lots on the adjacent land at 339 Sydenham Street (No 339), to use the easement as their means of access from the street, including vehicle access to parking on those lots. The easement is the only current means of access.

4 These proceedings commenced with an application by the City for an interim injunction to restrain the defendants from acting to obstruct the easement, pending resolution of the matter. It was unnecessary to determine the application as the defendants undertook to construct no fence or gate pending judgment in the action. The City, however, apprehends that unless permanently restrained the defendants might erect a fence or gate and obstruct, impede or interfere with access along the easement.

5 The present situation presents many problems. The defendants are limited in the use of their land by the presence of the easement. The occupiers of the rear units on No 339 have no security in their access arrangements, and depend on permission from the City. But, for the foreseeable future, the easement is the only means of access, as it has been for more than 20 years.

6 Notice of these proceedings was given to the owners of the lots on No 339.

7 The principal relief that the City seeks is a declaration that on the proper interpretation of Easement F244538, the defendants are not entitled to erect or cause to be erected any fence, gate or other obstruction on or about those portions of the easement boundary which abut:

(a) the common property area on Strata Plan 30899; or

8 The City also seeks a permanent injunction to restrain the defendants from erecting any fence or gate or other obstruction to impede or interfere with access.

9 There is a discrete issue regarding whether the easement requires amendment due to a discrepancy in the sketch forming part of the easement document. In short, the dimensions and angles shown on the sketch are not geometrically consistent. All corners are shown to be right angles, yet the width at the street boundary is 6 m, while the width near to the other end of the easement is 5 m. The City seeks the following orders:

(3A) An order pursuant to section 129(c)(1) of the Transfer of Land Act 1893 that Easement F244538 be modified in its sketch by amending angles as follows:

(a) the angle on the inside of the Easement Area formed by the junction of the Sydenham Street frontage and the 40metre length of the Easement Area, be 88.57 degrees rather than 90 degrees;

(b) the angle on the inside of the Easement Area formed by the junction of the 40metre length and the one-metre length of the Easement Area, be 92.15 degrees rather than 90 degrees; and

(c) the angle on the outside of the Easement Area formed by the junction of the onemetre length and the twometre length of the Easement Area, be 90.73 degrees rather than 90 degrees;

(3B) An order that the second defendant amend the Land Titles Register to reflect those modifications;

10 The defendants counterclaimed. They apply for orders on alternative bases, depending on whether the court finds that the easement is lawful or unlawful.

11 The counterclaim dated 21 September 2015 included the following prayer for relief:

An order extinguishing the easement on 337.
An order for The City to acquire sufficient land from the Owners of units 1, 2 (339) and build a driveway for units 2 & 3 on 339.
An order for compensation from the City to the defendants for authorising the use of easement from when the defendants bought the property until commissioning of the driveway on 339.
An order enabling the establishment of a boundary fence between 337 and 339 and a gate at the entrance to the easement/driveway on Sydenham Street after commissioning of the driveway on 339.
An order for compensation towards the additional interest the defendants are liable for as a result of The City's court action which has disrupted the defendants plans to move into the units and sell their current house which is also mortgaged.
An order for compensation for decline in the value of the defendants current house which could not be sold due to the legal proceedings initiated by The City.
An order for the loss in benefits suffered by the defendants' children as a result of not being able to move into the units on 337.
Such further orders or other relief as this honourable Court thinks fit.

A declaration that on the proper interpretation of the terms of the Easement, the plaintiff is not entitled to authorise the owners and/or occupiers of Units 2 & 3 of 339 to use the easement on a permanent/long term daily basis.
An order for the extinguishment of the easement given that The City has not used the easement since it was granted over twenty years ago and have confirmed in writing that they have no future use for it.

12 The defendants were registered as the owners of the land, as tenants in common in equal shares, on 8 August 2014. The record of certificate of title, dated 14 October 2014, shows two encumbrances, including:

Easement to the City of Belmont. See Sketch on [volume and folio given] Registered 9.7.1993.

13 The certificate of title, at 3 April 2014, records the transfer of the easement in these terms:

A right of carriageway over the portion of the within land marked 'A' on the map in the margin, as set out in the said transfer, is granted to the City of Belmont. Registered 9th July 1993 at 14.28 hrs.

14 The easement does not itself use the term 'right of carriageway', although it refers in cl 2(e) to 'the right of way comprising the easement'.

The Grantor, being registered as the proprietor of an estate in fee simple in the land described in item 1 of the Schedule hereto (the 'Servient Tenement') subject to the encumbrances notified hereunder in Item 2 of the schedule IN CONSIDERATION of the sum sent out in Item 3 of the schedule (with the receipt of which is hereby acknowledged by the Grantor) paid to the Grantor by the Grantee HEREBY TRANSFERS AND GRANTS to the Grantee and its authorised officers, employees, agents and other persons from time to time authorised by the Grantee under and by virtue of the provisions of section 33A of the Public Works Act 1902 full and free right, liberty, power and authority from time to time and at all times hereafter to go, pass and repass for all purposes and either with or without vehicles over and along that portion of the servient tenement as is delineated and coloured orange on this sketch in the annexure hereto (the Easement).

16 Clause 2 of the easement contains the grantor's covenants. Relevantly, cl 2 provides:

Notwithstanding anything made, done, omitted or knowingly suffered, the Grantor has full power to make the grant set out herein and assures the Grantee such grant shall remain to and be quietly held and enjoyed by the Grantee and the benefit thereof shall be received and taken accordingly without interruption or disturbance by the Grantor or any person claiming by, through or in trust for or in any way against the Grantor.

The Grantor and every other person having or rightfully claiming any estate or interest in the Servient Tenement will from time to time and at all times hereafter at the request of the Grantee do all such lawful assurances and things for more perfectly assuring the grant set out herein as the Grantee reasonably requires.

The grantor will not construct, erect or build or suffer to be constructed, erected or built any building structure or obstructions whatsoever on the servient tenement or any parts thereof or use or permit the servient tenement to be used in such a way as to obstruct or interfere with the use of the easement without the consent in writing of the grantee first being obtained.

If required by the Grantee, the Grantor shall construct and/or pave the right of way comprising the easement to a standard stipulated in any development approval or planning consent, where the easement has not already been paved. Further, the grantor or his successors in title as may be appropriate shall bear the responsibility for cost, for repair and maintenance of the easement and the grantor further assures the grantee that the grantee shall not be liable for any costs associated with such repair or maintenance. The grantee may direct any person that it authorises to use the easement to make a reasonable contribution towards the maintenance of the easement, to the grantor.

17 Clause 3 provides that the rights granted are granted in common with the corresponding rights of the Grantor and other persons lawfully entitled to exercise such rights.

19 The schedule defines the servient tenement by reference to the certificate of title details for No 337. There is not, however, a dominant tenement.

20 The property at No 337 was formerly owned by James Callaghan, who lived in Collie. Mr Callaghan became the registered proprietor in 1962.

21 In 1987, Mr Callaghan inquired about the number of units that could be placed on the land. In 1988, the City advised him that the zoning and 'R Code' under a Town Planning Scheme, currently awaiting approval, would allow for the possibility of three grouped dwellings. The City also advised that the scheme called for consideration of the development of the street block and 'the whole street block needs to be assessed to determine which lots could be developed for medium density development. This may or may not preclude the subject property'. Planning documents prepared at around this time sometimes referred to the street block as a 'superblock'.

22 It is convenient at this stage to outline the planning policies by reference to which the City acted.

23 Town Planning Scheme No 11 was then current. Part V prescribed development requirements. Development approval was required for the development of multiple dwellings on a lot. Clause 5.16 provided that Council (that is, the Council of the City of Belmont) may make planning polices relating to any part of the Scheme Area for the purpose of controlling developments. A planning policy was not binding, but Council was required to take into account the provision of the policy and the objectives which it was designed to achieve before making a decision: cl 5.16.2.

24 The policies made pursuant to Scheme No 11 included Policy Statement No 7, adopted by Council on 25 November 1991, which provided in relevant parts:

POLICY BASIS

The approach of allowing redevelopment to occur on each lot in isolation has in many cases produced a poor result.

The policy was formulated from the findings of a community-based Urban Consolidation Design Workshop held on Saturday, 11 May 1991, coordinated by the Department of Planning & Urban Development and the City of Belmont.

POLICY AREA

All land is zoned 'Residential A' under the City of Belmont Town Planning Scheme No 11.

POLICY OBJECTIVE

To ensure that increased residential density achieves a high standard of residential development that conforms with proper planning and architectural principles.

25 The policy statement included definitions. Relevantly:

'Superblock' (Street block) means any group of lots generally bounded by streets.

26 The policy required an Outline Development Plan for each residential superblock to be adopted by Council before the approval of any development exceeding density coding of R 12.5: par 2. An outline development plan (sometimes referred to as an Outline Development Concept) was required to demonstrate that consideration was given to various factors including relevant statements of planning policy adopted by Council. Relevantly, factor (g) was in these terms:

Establishing the method of access to land which can be developed to avoid repetitious driveways and crossovers. This may be achieved by joint use of access ways on adjoining lots rather than separate access ways side by side.

27 In October 1991, Mr Callaghan applied for approval to commence development of a triplex development. The application was submitted by Mr Callaghan's builders, Grouplex. By letter dated 4 December 1991, the City advised him that the proposal could not be considered without an Outline Development Plan. The letter stated that it enclosed a copy of the Council's Statements of Planning Policy. A similar letter was provided to Grouplex. Ms Saldanha has questioned whether planning documents were provided to Mr Callaghan, but there is no reason to doubt that they were.

28 In January 1992, Mr Callaghan requested that his application be treated as a 'single special case with utmost urgency', referring to earlier delays during a moratorium on developments, and his need for accommodation in the city due to his health. The defendants rely, in part, on the assertion that Mr Callaghan was old and frail. This is the extent of the evidence to support that claim.

29 On 3 February 1992, the City's Planning and Development Committee recommended that an outline development plan for the superblock bounded by Sydenham Street, Daly Street, Alexander Road and Williamson Avenue be prepared by planning staff for presentation to the next committee meeting or a special meeting. That superblock includes No 337 and No 339. On 3 March 1992, the Planning and Development Committee resolved to recommend to Council that Outline Development Concept D52 be approved, and that Mr Callaghan be advised of changes required to his application for approval. Council adopted those recommendations at its meeting of 9 March 1992.

30 Outline Development Concept D 52 identified No 337 as having development potential. In setting out preferred residential development options the plan shows, as one option, the creation of a right of carriageway within No 337, providing access to the rear of No 339. That option could be implemented without the grant of an easement in gross to the City. It could be implemented, for example, by agreement between adjacent landowners for the grant of an easement over No 337, benefitting No 339 as the dominant tenement.

31 On 12 March, the City advised Mr Callaghan that an Outline Development Concept for the superblock had been finalised and adopted, and his builders (Grouplex) would be advised of Council's preferred option.

32 An amended planning application was submitted by Grouplex the actual application was not in evidence, but only the covering note.

33 On 28 April 1992, planning approval was given for a 3 x 3 bedroom grouped dwelling, subject to conditions which were to be met in the course of carrying out the development. The conditions included:

An easement in gross shall be provided free of cost to Council in accordance with the approved plan and Council's requirements, to facilitate the orderly movement of vehicular traffic associated with the subject land. The easement documents shall be prepared by Council's solicitors at the developer's cost.

The easement in gross shall be surfaced, kerbed, drained and maintained at the developers cost to a standard satisfactory to Council.

Driveway width to be 3.5 m.

34 In March 1993, Mr Callaghan asked for approval to remove some of the trees on his block. In its reply, the City reminded him of the condition requiring the grant of the easement, which had not then been complied with. In June 1993, the solicitors acting for the City wrote to solicitors then acting for Mr Callaghan about the easement, enclosing a copy for execution. The letter refers to the need for a Local Authority Certificate for the purposes of s 23 (now repealed) of the Strata Titles Act 1985 (WA). This suggests that the City believed that No 337 was to be subdivided into strata lots. If subdivision had been intended it was not done. The land and three home units on No 337 remain in single ownership.

35 The easement was executed and registered in July 1993.

36 When the easement was created, the land at No 339 was a single dwelling, although with recognised development potential. In 1992, the then owners of No 339 had inquired about the potential to build three units on it, and an easement for access to both properties as part of the development of No 337. In further correspondence in May 1993, the owners of No 339 said that Mr Callaghan was anxious to know what arrangement would be made regarding the easement and the boundary, and asked the City to advise 'the legal requirement of the Council regarding this easement and how it would affect us should we make an application to build'. In reply, the City wrote:

Council has required an easement ... on Lot 2 (337) Sydenham Street for the purpose of providing joint access. Lot 56 (339) being 1191 m2 in area is a two grouped dwelling site at the base coding of R20 and consideration of 3 dwelling units on the lot would be dependent on a design which harmonises with the existing development and takes advantage of the possibility of sharing the accessway on Lot 2.

The Council envisages that a portion of the accessway would be on both lots. I suggest that you consult with Council's Planning Section during the design process'.

37 In 1996, No 339 was developed with three units, and the land was strata titled. When planning approval was given for the construction of the lots on No 339, no allowance was made for a driveway or part of it on No 339. The two rearmost dwellings on No 339 were reliant on the existing easement, wholly on No 337, for access.

38 On 10 April 1996, solicitors for the owners of No 339 wrote to the council regarding the lack of any legally enforceable access to the rear units on that land, and requested the City to provide them with a registrable grant of easement.

39 On 2 May 1996, the City responded, referring to the easement in gross held by the City on No 337 and the power given to the City to grant right of access to the third parties. The letter continued:

The City of Belmont is, as a matter of course, prepared to authorise the owner of adjoining Lot 56 (No 339) Sydenham Street and his successors in title the right of access of the designated land on the basis that the cost of maintaining the accessway will be equitably shared by the four strata title owners using it. The City is not the owner of the land and therefore has no authority to grant an easement.

... If Mangoulf Pty Ltd [the owners of No 339] wish to pursue a registrable grant of easement over a portion of Lot 2 (No 337) Sydenham Street then it is a matter to be negotiated with the owner of that lot and the City of Belmont will not be a party to it.

40 In this letter also, the City appears to assume, incorrectly, that No 337 has been subdivided with the two rear units on strata titles.

41 On 14 May 1996, the City wrote to the owners of No 339 regarding the release of the performance bond for the development and advised that the City was not willing to release the bond until a satisfactory agreement had been negotiated with the owner of No 337 concerning the ongoing maintenance of that portion of the accessway to be used to gain access to units on No 339. The City asked for details to be forwarded once an agreement had been reached.

42 On 17 May 1996, the Council received a fax of minutes of the inaugural meeting and first general meeting of the Owners of 339 Sydenham Street, Belmont (the Strata Company for No 339). The three strata units on No 339 were then under a single ownership. The minutes record a resolution that:

shall note that the driveway of 337 Sydenham Street, Belmont, used as access for Unites 2 and 3 of 339 Sydenham Street, Belmont ... shall be maintained equally by the owners of both properties 337 and 339 Sydenham Street, Belmont and the owners of 339 Sydenham Street, Belmont will be responsible for 50% of the cost of all repairs. 2. shall not use the lot that he owns, occupies or resides in for any purpose that may be illegal or injurious to the reputation of the building.

shall not make undue noise in or about any lot or common property.

shall maintain the common area alongside the driveway adjoining 339 Sydenham Street, Belmont.

43 There is no evidence that any agreement was made between the strata company for No 339 and the proprietors of No 337. If there was an agreement, it did not result in the creation of any registrable interest in the land over which the easement lies.

44 The only other evidence of any agreement between the owners of the two lots is a typed document, dated 14 June 1995, on the letterhead of Laurie Kelly, Real Estate. It was found in an envelope in which the City held documents relating to the development at No 339. The document is purportedly signed on 20 June on behalf of Mr Callaghan - the actual signatory is not known. It is addressed 'to whom it may concern' and states:

I J Callaghan am aware that there is an easement on my property at 337, Sydenham Street, Cloverdale. The easement is to allow development of the block at 339 for a driveway. I will not be liable for any costs involved in the development of the common driveway. I am aware that I am liable for 50% maintenance on the common driveway once construction is completed.

45 Mr Kelly gave evidence at trial. He said that his firm had acted as property managers for Mr Callaghan and, on Mr Callaghan's death, his successor. The property management had been carried out by employees. Mr Kelly had no knowledge of the letter and had no copy on his files.

46 The defendants question whether the letter is genuine. That does not arise for consideration in this case, and would not be relevant to the matters I am to determine. Whether the letter is genuine or false, there is no evidence of an enforceable agreement or any transaction conferring an interest in the land on which the driveway is situated.

47 In 1996, the City received a report from its Planning Section advising that the use of easements in gross had created difficulties and could not be considered a success. It recommended that the requirement for easements in gross be discarded unless considered necessary in the particular circumstance. A motion that current outline development concepts and the requirement for easements in gross be discarded was carried on 23 September 1996.

48 The two rear units at No 339 used the easement for many years without any formal arrangement with the City. After the defendants bought No 337 and stated their intention to fence off the land, the City formalised the arrangement with the owners and occupiers of Lots 2 and 3 on No 339. This was done by letters to the occupiers, first in October 2014, then again in January 2015, and finally on 6 May 2015.

49 In construing a registered instrument creating an easement, the general rule is that material outside the register may not be used: Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528. The exceptions to this general rule are limited. Evidence is admissible where it is necessary to make sense of terms or expressions identified in the register, such as surveying terms, or abbreviations which appear on a plan: Westfield Management [37], [39], [42], [44] [45]. The general rule does not rule out reliance on evidence of the physical characteristics of the land: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; (2008) NSW ConvR 56-200 [15]; Hare v van Brugge [2013] NSWCA 74; 84 NSWLR 41 [16] [18]; Tempe Recreation (D 500215 and D 1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449.

50 The position here differs from that in the many cases on the proper construction of easements, because there is no dominant tenement. The easement in gross is not a form of easement recognised at common law. But the restriction on admissibility of extrinsic evidence is not based on the legal nature of an easement, but in the characteristics of the Torrens system of title by registration, and the maintenance of a publicly accessible register containing the terms of the dealings with land under that system. There is no reason why those principles should not apply also to interests which may only be created because of a particular statutory provision.

51 In short, the evidence admissible on the construction of the easement is limited to the terms of the grant, the description of the easement in the register, and the physical characteristics of the land (should they be relevant).

52 In my opinion, the court should also have regard to any statutory provision under which the easement may be created or acquired. A construction which would lead to an interest which is not recognised by law should not be adopted.

53 Counsel for the City argued also for the admissibility of planning policies, on the basis that those policies are publicly available documents. I do not believe that material is admissible. It is not the fact that information is publicly available that makes it admissible; it is admissible if it is maintained in the register of land titles and dealings. Policy documents do not meet that criterion for admissibility. Nor are they matters of written law.

54 Together with the terms of the easement, the following material is relevant in the process of construction.

55 First, the grantor is the owner of all of the land described as the servient tenement. That is, the occupiers or owners of the rear units on No 337 do not require an interest in the land owned by the grantor for access to their property.

56 Second, the Certificate of Title recording the transfer of the easement describes it as a right of carriageway.

57 Third, the rights granted include the right to 'go, pass and repass for all purposes and either with or without vehicles' and are expressed in the fullest terms and without limitation.

58 Fourth, the grantor's covenants include the covenant to neither construct any obstruction on the servient tenement or to use or permit the servient tenement to be used in such a way as to obstruct or interfere with the use of the easement: cl 2(d).

59 Fifth, the covenants include a requirement to 'construct or pave the right of way comprising the easement': cl 2(e). The same clause includes the obligation to maintain, at the grantor's cost, but further provides: 'The grantee may direct any person that it authorises to use the easement to make a reasonable contribution towards the maintenance of the easement, to the grantor'.

60 Sixth, the configuration of the easement: it is a narrow strip, beginning at a public road and running along the boundary of the two properties for about 80% of the length of the boundary.

61 Taking those matters into consideration I have no doubt that the easement is intended to be a right of way, including for the passage of vehicles. Those exercising the right, including those authorised by the grantee, may go or pass for all purposes. There is no identification of a servient tenement benefited by the right of way, but nor could there be when the grantee, the City, is not the holder of adjacent land.

62 The defendants submit that the apparent intention of the easement was to provide future access to the occupiers of the two units at the rear of No 337. Having regard to the terms of the grant, the fact that the whole of No 337 was in single ownership, and the identity of the grantee, I am satisfied that the parties did not intend that result. An easement to the City, including a clause for the City to direct contribution to maintenance, is unnecessary to benefit occupiers on No 337. Rather, properly construed, the grant intended the rights under the easement to permit the City to authorise the use of a right of way, on conditions, by the occupiers of the adjacent land.

63 The defendants raised a particular issue of construction. By the easement the Grantor transferred and granted to the City and its authorised officers, employees, agents and other persons it authorises 'full and free right, liberty, power and authority from time to time and at all times hereafter to go, pass and repass for all purposes ...' The defendants submit that if 'at all times' means complete and unrestricted access, it is inconsistent with the word 'from time to time'. They submit that, properly construed, the words 'from time to time' refer to the frequency of access, and at all times to the timing. That is, the City may authorise access at any time, so long as the access is infrequent and irregular. The current use of the easement as a right of carriageway is beyond what could reasonably be considered as 'from time to time'.

64 There are two reasons why I do not accept this submission. First, the grant includes reference to the easement as a right of way, and the certificate of title records it as a right of carriageway. Second, the use of the expression 'from time to time' is common where a power or right is conferred that is not exhausted by its exercise, but can be exercised repeatedly. In this case, I would construe 'from time to time and at all times hereafter' as a composite expression indicating a grant of the widest ambit a right that can be exercised repeatedly and at all times. The grant is not limited in the manner contended by the defendants.

65 The power of the City to direct any person it authorises to use the easement to make a contribution towards its maintenance is also more consistent with regular or frequent use.

66 The defendants plead that the easement was unlawfully demanded and obtained, on several bases:

The benefit of the easement, as an easement in gross, cannot be transferred by the City to another party.
The easement cannot be created as a public access easement, by reason of s 196(3) of the Land Administration Act. The only way to create an easement for the purpose of access to No 339 is by a private agreement between the owners of No 337 and No 339.
An easement in gross could only be created to serve a public purpose or to enable public works to be carried out.

67 The general rule is that an easement cannot be created without a dominant tenement - that is the land entitled to the benefit of the easement. That rule is subject to exception for easements created under statute, which may be created as easements in gross.

68 The easement in this case is expressed to be granted by virtue of the provisions of section 33A of the Public Works Act 1902. That section was repealed in 1997; pt 9 of the Land Administration Act 1997 now contains the provisions relating to acquiring land for the purpose of undertaking, constructing or providing any public work. I will turn later to the current Act, but set out first the provisions in force at the time the easement was granted.

69 Section 2 of the Public Works Act defines public works. The definition is wide ranging, but does not expressly include the provision of access to private property.

70 By s 10 (now replaced):

Whenever the Crown, or the Governor, the Government of the State, or any Minister of the Crown, or any local authority is authorized, by this or any other Act, to undertake, construct or provide any public work, any land required for the purposes of such work may be taken under the provisions of this Act.

71 Part II deals with taking land for public works. Within pt II are sections under the heading 'Dealing with lands taken or otherwise acquired', including s 33A.

It shall be and shall be deemed always to have been possible

(a) to create in favour of the Crown or in favour of a local authority, an easement without a dominant tenement;

(b) to make appurtenant or to annex to an easement, another easement or the benefit of a restriction as to the user of land.

72 The Land Administration Act is an Act for objects including 'to consolidate and reform the law about Crown land and the compulsory acquisition of land generally ...'.

73 Part 9 is headed 'Compulsory Acquisition of Interests in Land', although it provides also for taking by agreement. Part 9 picks up the definition of public work from the Public Works Act: see s 151. Division 2 provides for the taking of interests in land for the purposes of a public work: see s 161. Other divisions within pt 9 prescribe the procedure for taking an interest in land, entry onto land, and use and disposal of land designated for a public work.

74 Part 9, div 6 is headed 'General Provisions'. Within it, s 195 largely reproduces s 33A of the Public Works Act:

It is possible, and is deemed always to have been possible

(a) to create in favour of the State of Western Australia or in favour of a State instrumentality, statutory body corporate or local government, an easement without a dominant tenement; and

(b) to annex to or make appurtenant to an easement, another easement or the benefit of a restriction as to the user of land.

75 The defendants placed some reliance on s 196 which, in s 196(3), provides that an interest in land cannot be taken under pt 9 'for the purpose only of creating a public access easement'. That argument can be quickly dealt with. The easement in favour of the City is not a public access easement as defined, not being for the use and benefit of the public at large: s 196(2). Section 196 does not assist the defendants.

76 Neither s 33A of the Public Works Act nor s 195 of the Land Administration Act is expressly limited to land held or acquired for the purpose a public work. Each section must be read in the context of the Act in which it appears - both the whole Act and the particular division or part. That context might imply a limit on the ambit of each section. On balance, however, I do not believe the section should be confined in the manner the defendants argue. First, the language of each section is unqualified. Second neither section confers any power that affects property rights of others - it says nothing about the taking or acquiring of the interest, the legality of which must be determined otherwise - but simply recognises the existence of statutory easements which need not be appurtenant to land held by the State or other specified public body. Third, the reach of the section is not confined to land taken under the relevant statute but the section deems it always to have been possible.

77 If it is necessary to determine whether the City could lawfully acquire interests in land, by agreement or otherwise, the Town Planning and Development Act 1928, s 13, provided at the relevant time:

(1) The responsible authority may, for the purpose of a town planning scheme, in the name and on behalf of such authority

(a) purchase any land comprised in such scheme from any person who may be willing to sell the same; or

(b) with the consent of the Governor, take compulsorily, under and subject to Part 9 of the Land Administration Act 1997, (but subject to subsection (2)), any land comprised in such scheme, and whether situate within or without the boundaries of the district of such responsible authority.

78 Town Planning Scheme No 11 provided, in pt VII:

The Council in implementing the Scheme has, in addition to all other powers vested in it, the following powers:

(i) The Council may enter into any agreement with any owner, occupier or other person having an interest in land affected by the provisions of the Scheme in respect of any matter pertaining to the Scheme;

(ii) The Council may acquire any land or buildings within the district pursuant to the provisions of the Scheme or the Act. The Council may deal with or dispose of any land which it has acquired pursuant to the provisions of the Scheme or Act in accordance with the law and for such purpose may make such agreements with other owners as it considers fit.

79 Provided that the rights in the easement were acquired by the City for the purpose of the Scheme, 'in implementing the Scheme' and 'in respect of ... matters pertaining to the Scheme', the City was authorised by the Act and by pt VII of the Scheme to acquire interests in land by agreement with the owner.

80 Part VI of the Scheme contained provisions relating to planning consent. In particular, the Council, having regard to matters including 'the orderly and proper planning of the locality', may refuse to approve an application for planning consent for a development or grant its approval subject to such conditions as it thinks fit: cl 6.3.2. Under pt V, cl 5.16, Council was empowered to make planning policies for the purpose of controlling development. Those policies were not binding but Council was required to take a policy and the objectives it was designed to achieve into account before making its decision. I have already referred to the terms of Policy Statement No 7, and the Outline Development Plan prepared for the 'superblock' in which No 337 and No 339 lay.

81 More generally, the provision of street access in the development of residential land is properly regarded as a matter related to implementing the Scheme and a matter pertaining to the Scheme. The Council was authorised by s 13 of the Act and by pt VII to acquire an interest in the nature of the easement by agreement.

82 For those reasons I find the easement was lawfully granted.

83 On the terms of the easement, the rights granted to the City include the right to authorise others to go, pass and repass over and along the land. In exercising those rights, the City is not transferring the rights under the easement to another.

84 The defendants raise a series of allegations regarding the conduct of the City with regard to Mr Callaghan and, to some extent, the developers of No 339. The allegations (some overlapping) are in summary:

The City misused it power to acquire an easement from Mr Callaghan who was an unsuspecting, old, and frail man.
The City engaged in deceptive conduct when the true purpose of the easement was not clearly explained to Mr Callaghan.
The City's conduct was unconscionable because it did not adequately explain the relevant planning condition requiring the grant of the easement or encourage Mr Callaghan to seek legal advice prior to proceeding with the construction of the three units on his land. After the construction was completed, Mr Callaghan was left with no alternative but to grant the easement.
The agreement to grant the easement was an unfair contract: the easement deed drawn up the City's lawyers is so one-sided in favour of the City that it would be unconscionable to enforce it.
When providing planning approval to the developers of No 339, the City did not comply with its own planning policy.

85 The evidence relied on in support of these claims is summarised above. Some of the factual contentions on which the defendants rely are not wholly supported by evidence - for example, that Mr Callaghan was frail and unable to look after his own interests. But it is not necessary or appropriate in this case to make detailed finding on the evidence. The defendants' allegations relate to conduct that occurred between about 19 and 25 years ago. If there was a legal wrong, and damage was suffered, the cause of action belonged to someone other than the defendants. There is no relief or remedy relevant to the position of these defendants that could derive from attempting to now resolve these factual claims.

86 I would briefly comment on one of the defendants' claims. In pars 25 to 27 of their counterclaim, the defendants plead that employees of the City had engaged in an unlawful conspiracy to enable the development of three units on No 339; assisted the developers to convince prospective buyers that the City had power to authorise access under the easement; and, once the units on No 339 were built and sold, changed residential codes in the City's planning scheme to 'reduce interest in the land and conceal the deception'. The evidence at the hearing provided no support for these claims. In par 27(ee) of the counterclaim, Ms Saldanha makes it clear that her claim of a conspiracy is based on a hunch. That is a totally inadequate basis on which to make such serious allegations.

87 The use of easements held by the City to provide access to adjacent land may have been ill conceived, and the policy was later discarded. But that falls far short of supporting the defendants' allegations. Had a legal practitioner made such serious allegations on the evidence available, that practitioner's conduct would, in my opinion, have been a serious contravention of r 36(2) and (3) of the Legal Profession Conduct Rules 2010 (WA).

88 The defendants sought to bring the various allegations they made within their claim for the removal of the easement under s 129C(1). Relief under that subsection is available only on more limited grounds. In my opinion, for the reasons that follow, the defendants are not entitled to an order under s 129C.

(1) Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied

(a) that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or

(b) that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or

(c) that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.

(2) When any proceedings by suit or otherwise are instituted to enforce an easement, or to enforce any rights arising out of the breach of a restrictive covenant affecting land under this Act or any local government or public authority then any person against whom the proceedings are instituted may in such proceedings apply to the court or a judge for an order under this section.

Par (a) - should the easement be deemed abandoned or obsolete; does the easement impede reasonable use

92 The first question is whether there has been any change in the use of the land to which the easement is annexed, change in the character of the property or neighbourhood, or other material circumstance so that the easement ought to be deemed to have been abandoned or to be obsolete.

93 There is considerable authority on s 129C and equivalent sections in other jurisdictions regarding what is required for an easement or restrictive covenant to be considered obsolete or abandoned: see Vrakas v Registrar of Titles [2008] VSC 281 [23] [48] (Kyrou J); Davidson v Elkington [2011] WASC 29 [64] [81] (Hall J); Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 (Pritchard J).

94 The easement in this case is not annexed to a dominant tenement. There was no evidence of any changes in the character of the property or the neighbourhood, or other material circumstances that affect the continuation of the easement.

95 The evidence shows that the since the creation of the easement, the driveway has been used for the purpose of access to the rear units on No 337 (for which no easement is necessary as the land in No 337 is in single ownership) and also the adjacent land. The authorisation to use the easement to access No 339 was not formal. But there is no evidence that its use as a right of carriageway by the occupiers of No 339 was questioned before the defendants purchased No 337. That is, there has been about 19 years of use (since the development of No 339), and the easement remains the sole means of access to those lots. The fact that the use is not by the City and its officers and employees is not to the point. The rights granted to the City included the right to authorise other persons to go, pass and repass over and along the easement. The City has shown no intention to abandon those rights, and continues to exercise them. They should not be deemed to have been abandoned. Having regard to the way in which the easement is used, the rights it confers are not obsolete.

96 The presence of the easement limits the manner in which the defendants can use their land. In particular, they cannot fence or secure all of their boundaries in the manner they prefer. As a result, the defendants' say that their tenants have complained that on one occasion of a woman who appeared to be drunk knocked on the front door of one of the units on No 337, and threatened to break a window. On other occasions, people have knocked on the door of a unit on No 337, when they were looking for occupiers of No 339. The tenants have also complained about a dog from No 339 entering their land, because there is no fence. The defendants also led evidence of some friction between tenants on No 337 and the occupiers of units on No 339 over the use of the easement, and at least one occasion when damage was negligently caused to the vehicle of one of the tenants.

97 The question raised by s 129C is more limited. To establish this ground, the defendants must show that no reasonable use of the land is possible unless the restriction is modified or extinguished, and requires consideration of the situation of the land, the surrounding property and the purpose of the easement: see, for example, Re Ghey & Galton's Application [1957] 2 QB 650, 663; Heaton v Loblay (1960) SR (NSW) 332, 335; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743 [14]; Panton v The Owners of Survey Strata Plan 46838 (Pritchard J).

98 The property at No 337 is a residential block. It has been used for that purpose, with the easement in place and used as a right of way, since the easement was granted in 1993. The defendants have not shown that the continued existence of the easement impedes the reasonable use of their land.

99 The defendants have not established any ground for removal of the easement under par (a).

100 There is no question of the City agreeing to the removal of the easement or waiving its benefit. On the basis of the continuing use of the rights it confers, I am not satisfied there has been any abandonment or waiver of the benefit of the easement.

101 The question of substantial injury is affected by the fact that there is no dominant tenement - the City holds the easement as an easement in gross. The rights the City enjoys under the easement affect it in its capacity as the local government - the easement was an instrument by which infill development of multiple dwellings could occur while maintaining means of access to the street. In my opinion, the loss of the City's rights under the easement would, in those circumstances, be a substantial injury to the City within the meaning of s 129C(1)(c).

102 Extinguishment would substantially injure the occupiers of No 339. It is unnecessary to decide whether they fall within the class of persons 'entitled to the easement or to the benefit of the restriction' in s 129C. Even if they do not, their interests cannot be separated from the interest of the City in ensuring that developed land within its area has street access.

103 If I am wrong about the availability of the ground in s 129C(1)(c), I would, in the exercise of discretion, not remove the easement. Even if one or more of the grounds for extinguishment is made out, s 129C confers a discretion as to whether the easement should be extinguished: see Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28; (2000) 10 BPR 18,099 [2] (Mason P); Re Rosedale Farm (NSW) Pty Ltd [2010] NSWSC 1321; (2010) 15 BPR 28,791 [59] (Slattery J) on the discretion arising under the corresponding provision, s 89 of the Conveyancing Act 1919 (NSW); Panton v The Owners of Survey Strata Plan 46838 [158] (Pritchard J).

104 I take into account that the presence of the easement does limit the defendants in the use and possible development of the land. They are unable to secure the land. The costs of insurance are greater because of the presence of the easement.

105 In the circumstances, in my opinion, the interests of the defendants do not outweigh the very strong factors against removal:

(1) the easement has been in place and used as a right of carriageway for the benefit of No 339 for many years;

(2) the easement is the sole means of access to the rear units on No 339;

(3) the defendants purchased No 337 aware of the presence of the easement (although perhaps mistaken about whether they might be able to have it removed).

106 The defendants submit that an alternative driveway could be constructed wholly within No 339. Some of the driveway might be on common property. But it is apparent that an interest in land would have to be acquired from the owners of, at least, the front strata lot. The court has no power to compel the acquisition of that interest.

107 The easement should not, in my opinion, be extinguished.

108 The easement provides that the City may direct any person that it authorises to use the easement to make a reasonable contribution to the grantor towards the maintenance of the easement. In correspondence with the City, the defendants have requested that it directs the owners of each of the two rear units on No 339 to pay $100 a month for maintenance and insurance costs.

109 It does not appear that the City has ever required a contribution or has ever developed or stated the means by which that contribution would be assessed or recovered. The City apparently (in 1996) contemplated a private agreement between the owners of the adjacent properties, but that did not happen. In 1996, the Strata Company for No 339 passed a resolution to the effect that the driveway 'shall be maintained equally by the owners of both properties 337 and 339 Sydenham Street, Belmont and the owners of 339 Sydenham Street, Belmont will be responsible for 50% of the cost of all repairs'. The evidence does not show the current status of that resolution, and whether such a requirement remains part of the by-laws for No 339.

110 In the present action, I can do no more than record the current position. There is no cause of action before the court on which the court might grant any relief relating to the question of contribution. Having regard to the absence of any mechanism, and the permissive wording of cl 2(e), I doubt that the City could be compelled to require a contribution.

111 There is a discrete issue regarding whether the easement requires amendment due to a discrepancy in the sketch forming part of the easement document. In short, the easement's dimensions and angles shown on the sketch are not geometrically consistent. All corners are shown to be right angles, but the width at the border nearest the street is 6 m, while the width at the other end is 5 m.

112 The modification is, however, minor. The modification that would have the least impact, and include the least land within the easement, is to correct the angles at the corners of the easement. The land within the easement would still be sufficient to provide the right of carriageway, including sufficient room for vehicles to reverse out of the car parking areas on No 339.

113 While this action is on foot, it is possible to modify easement on the application of the City, as the local government: s 129C(1). I am satisfied that the modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction. Although the rights under the easement have been in force for many years without the discrepancy causing any problem, an application has now been made in these proceedings, the easement has been surveyed, and it is possible to make the correction.

114 For the purposes of resolving the present dispute, the Court should make a declaration in the terms sought by the City, that is

on the proper interpretation of Easement F244538, the defendants are not entitled to erect or cause to be erected any fence, gate or other obstruction on or about those portions of the easement boundary which abut:

(a) the common property area on Strata Plan 30899; or

(b) the Sydenham Street road reserve.

115 That declaration having been granted after a fully contested hearing, it should not be necessary to grant a permanent injunction in those terms. I have no reason to believe that the defendants will attempt to assert a position inconsistent with that found and declared by the court.

116 The parties raised some separate, consequential questions arising out of the general issue of the proper construction and the lawfulness of the easement. It is not necessary to discuss them in detail as the answers flow from the answers to the two main issues. But for the avoidance of doubt:

The City may authorise persons to use the easement so as to permit use on a long term basis.
The City may authorise use for the purpose of enabling persons to obtain access to Strata Lots 2 or 3 (No 339) Sydenham Street.
It would infringe the rights under the easement for the defendants to erect a fence on any part of No 337 that would obstruct or interfere with the use of the easement.
Similarly it would infringe the rights under the easement to erect a gate that would obstruct or interfere with the use of the easement.
The easement does not limit the City with regard to whom it may authorise to use the easement. The terms of the easement do not oblige the City to advise the defendants on every occasion that it authorises use of the easement, to whom the authority is given, and the conditions of use.
The City may, but is not obliged to direct the persons it authorises to use the easement to contribute to its maintenance.

117 The defendants have not established a basis for any of the relief they seek.

118 The court will order that the sketch be modified as to the angles but not the dimensions of the easement. That order will need to be in terms approved by the Registrar of Titles.

119 Finally, there is an issue of costs. Under s 129C(8) of the Transfer of Land Act, the costs of and incidental to an application made pursuant to the provisions of s 129C 'shall not be awarded against the defendant or respondent in any event'. On the findings I have made, s 129C(8) applies only to the City's application to modify the easement. Otherwise, the normal discretion as to costs is not modified. The plaintiff has been wholly successful, except that I do not consider it necessary to grant a permanent injunction. That question, however, was not significant in the time and evidence at the hearing. I have refused that relief only because I trust the declaration to be sufficient. In my opinion, there is no reason why the costs of the action should not be awarded to the successful party.

Profession Conduct Rules 2010

Administration Act 1997

Planning and Development Act 1928

Public Works Act 1933(WA)

Transfer of Land Act 1983(WA)

At a glance

Court

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Judgment (154 paragraphs)

Par (a) - should the easement be deemed abandoned or obsolete; does the easement impede reasonable use

Legislation Cited (8)

Cases Cited (2)