MAIO -v- CITY OF STIRLING [No 2] [2015] WASC 189 (29 May 2015)

4 The second defendants together with Chris Bogle became registered proprietors of Lot 604 in 2006. At the time the second defendants and Bogle, who were described as the Transferee, and the City executed a deed entitled Transferee's Assumption Deed (2006 Deed). In 2010 the second defendants acquired Bogle's interest in Lot 604. The second defendants mortgaged the lot to the third defendant. The second defendants, who were described as the Transferee, the third defendant and the City executed a deed entitled Transferee's and Mortgagee's Assumption Deed (2010 Deed). By cl 2 of each of the 2006 Deed and the 2010 Deed the Transferee agreed with the City that they will observe and perform the provisions of the 1983 Deed on the part of the Original Owner, that is the original owner of Lots 602, 603 and 604.

5 Photograph A shows the bituminised crossovers or driveways from Sanderling Street to Lots 604 and 602 and the bituminised car parking bays on Lot 602 and the eastern and southern sides of Lot 604. Between August 1986 and April 1987 a service station was constructed on Lot 604. That resulted in the parking bays on the southern boundary of Lot 604 being removed. After construction of the service station there were five parking bays on the northern boundary of Lot 604 abutting Sanderling Street and 10 parking bays abutting the eastern boundary of Lot 604. There were also a further five parking bays within Lot 604 which were enclosed with concrete curbing.

6 The service station was demolished in 2008 and since then Lot 604 has been vacant except for the bituminised crossover to Sanderling Street and the parking bays on the northern and eastern boundaries. The development of Lot 604 from the time the service station was demolished is shown on the aerial photograph B annexed to these reasons for judgment.

7 The plaintiffs say that since at least 1985 the eastern portion of Lot 604 which is the hatched area on Photograph A (the Use Area) has been used by the occupiers of and visitors to the shopping centre for car parking and access to and egress from the parking area on Lots 604 and 602.

8 The second defendants have sold Lot 604 to the fourth defendant, Rainwave, under an agreement that is subject to a condition that the title is free from any caveats lodged by any third party other than the City. Rainwave proposes to develop the lot. The proposed development is a three storey mixed use building consisting of 12 office tenancies and 34 dwellings. The development is inconsistent with the benefits which the plaintiffs say were granted to the owners of Lot 602 and their successors by the 1983 Deed. The development includes vehicle bays in the basement which are not accessible from Lot 602, vehicle bays on the ground floor level which are dedicated to the residential units and offices as a result of which none of the parking bays are dedicated to providing reciprocal car parking in relation to Lot 602. Further, the development does not provide for unrestricted access by persons and vehicles to and from Lots 604 and 602.

9 The plaintiffs claim that the 1983 Deed and the 2010 Deed have granted to the plaintiffs the benefits granted by the 1983 Deed and in particular the rights of access and egress and parking on Lot 604. Alternatively, the plaintiffs claim that Lot 604 is subject to a restrictive covenant in the terms of cl 2 of 1983 Deed. In the further alternative the plaintiffs claim that together with their tenants, invitees, licensees, customers and visitors they have rights by way of easements acquired by enjoyment or user under the doctrine of lost modern grant or under the Prescription Act 1832 (WA). The plaintiffs claim an injunction restraining the second defendants and their transferees and successors in title from interrupting or preventing the plaintiffs' use and enjoyment of their claimed rights.

10 The City says that the deeds do not create any right in a covenanting land owner or their successors. The second defendants say that the plaintiffs are not entitled to enforce the covenants in the 1983 Deed, the deeds give rise to no restrictive covenant benefitting the owners of lots in Strata Plan 11718 and the owners of lots in Strata Plan 11718 are not entitled to easements over Lot 604 under the doctrines of prescription or lost modern grant. The second defendants concede that if the plaintiffs are found to have the rights they assert under the doctrine of lost modern grant or the Prescription Act (WA) the proposed development of Lot 604 is inconsistent with those rights because it alters the location of the car parking bays. In that event the second defendants seek an order under Transfer of Land Act 1892 (WA) extinguishing or modifying the easement.

11 Before addressing the issues raised in this proceeding it is convenient to outline the dealings with the land and its development.

12 In March 1982 the City of Stirling, the first defendant, sold the land on the corner of Cedric and Sanderling Streets, Stirling, identified as Lots 78 and 79 to Erceg Management Pty Ltd, Barrowford Pty Ltd and Professional Design & Drafting Services Pty Ltd and Lot 80 to the Petropulos family. Erceg Management applied for approval to develop Lots 78 and 79 in two stages. Stage 1 proposed a shopping centre. The plan was prepared as an integrated proposal with an adjoining medical centre on Lot 80. Stage 2 involved the construction of a tavern. The City approved the shopping centre development but not the tavern. The Town Planning Appeals Tribunal subsequently approved the tavern development but it never proceeded.

13 The land was subdivided in May 1983. The subdivision resulted in the creation of Lots 602, 603 and 604. In approving the subdivision the Town Planning Board, at the request of the City, required Erceg Management, Barrowford and Professional Design & Drafting Services to enter into an agreement with the City to ensure a number of planning objectives including access and reciprocal car parking rights between the existing shopping centre development on Lot 602 and any future development that was to take place on Lot 604.

14 The Deed of Agreement was executed in May 1983 (the 1983 Deed). The parties to the deed are Erceg Management, Barrowford and Professional Design & Drafting Services (collectively called the Owner) and the City. The deed recites that the Owner is the registered proprietor of Lots 78, 79 and 80. That is not correct because the Petropulos brothers were the owners of Lot 80 but it is not material to his case. The deed further recites that the Owner proposes to subdivide the land to form Lots 602, 603 and 604 and has made application to the Town Planning Board for its approval. The deed further recites that the Board has granted its approval to the proposed subdivision subject to a condition requiring the Owner to enter into an agreement with the City and at the request of the Owner the City has agreed, subject to the provisions of the deed, to notify the Board that the condition has been fulfilled and to recommend to the Board that the Owner be permitted to subdivide the land.

15 The 1983 deed consists of four clauses. Clause 1 provides that the City shall notify the Board that the condition referred to has been fulfilled and will recommend to the Board that the Owner be permitted to subdivide the land. Clauses 3 and 4 are incidental provisions. It is not necessary to elaborate upon them. Clause 2 sets out a number of covenants by the Owner. Those covenants are of central importance to this case. Clause 2 provides that the Owner 'hereby covenants with the [City] as follows'. There then follow covenants set out in cl 2(a) to (g). Clause 2(a) provides that the Owner covenants not to use or develop Lot 604 without the consent of the City which the City is at liberty to grant or refuse in its absolute discretion. Clause 2(b) is a covenant by the Owner not to allow vehicular access to, or egress from, Lot 604 from or to Cedric Street. Clause 2(c) is a covenant by the Owner that in carrying out any development of Lot 604 it will ensure that the design, colours and materials used are the same as in the existing shopping centre on Lot 602. Clause 2(d) is a covenant by the Owner not to erect a fence or to otherwise instruct or impede pedestrian or vehicular access on or between Lot 602 and Lot 604.

16 Clause 2(e) relates to access and reciprocal parking on Lot 602 and Lot 604. It is very important in this case. It is not a covenant that the Owner must provide access and reciprocal parking. It is a covenant that the Owner would, if they sold Lot 602 or Lot 604:

(a) grant to the purchaser a right to use the parking bays on, and a right, of access over, the lot which was not sold;

(b) reserve to the original owners of the lot which was not sold the right to use the parking bays on, and a right of access over, the sold lot; and

(c) ensure that the purchaser entered a separate deed with the City placing the purchaser in the same position as the original owners.

17 Clause 2(f) is a covenant by the Owner to obtain the consent to the provisions of the deed of any person entitled to an encumbrance on the land. Clause 2(g) is a covenant by the Owner not to sell or encumber Lot 604 unless the person to whom such right or interest in Lot 604 is granted has first executed a deed of covenant to observe and perform all the covenants contained in the Deed as if he had been a party to the Deed.

18 In August 1983 titles issued for Lots 602, 603 and 604. At the same time Strata Plan 11718, subdividing the land formerly contained in Lot 602 into 11 strata lots, was registered. The certificate of title for Lot 602 was cancelled. Commencing in October 1983 Erceg Management, Barrowford and Professional Design & Drafting Services transferred the lots in strata plan 11718 to various people who subsequently transferred them to others.

19 The first plaintiffs, Mr and Mrs Maio, are the current registered proprietors of Lot 6 on Strata Plan 11718 on which the supermarket is situated. The second plaintiff, JVR, is the current registered proprietor of Lot 1 and Lot 2 on Strata Plan 11718. The third plaintiff, Linemark Investments Pty Ltd, is the tenant of Lot 6. Mr and Mrs Maio are the sole shareholders and directors of JVR and Linemark. The fourth plaintiff is the strata company for Strata Plan 11718 and sues as representative of the proprietors of the lots in Strata Plan 11718 pursuant to Strata Titles Act 1985 (WA) s 33(1). Mr and Mrs Maio or their companies control a majority of units under the strata plan.

20 The second defendants are the registered proprietors of Lot 604. In 1984 Professional Design & Drafting Services transferred its interest in Lot 604 to Erceg Management. In 1985 Erceg Management and Barrowford transferred Lot 604 to Robert Holdings Pty Ltd. In 1986 Robert Holdings transferred Lot 604 to Anthony and Joan Siciliano. In August 2006 the Sicilianos transferred Lot 604 to the second defendants, Valmarl Pty Ltd and Peter Hearn, and Chris Bogle. At the same time Valmarl, Hearn and Bogle executed the 2006 Deed. The parties to the 2006 Deed are the City of Stirling, Valmarl, Hearn and Bogle. The deed recites that the then owner of Lot 604, Anthony and Joan Siciliano, desired to transfer Lot 604 to Valmarl, Hearn and Bogle (the Transferee) and by executing the deed the Transferee agrees to be bound by the terms of the 1983 Deed.

21 In 2010 Bogle transferred his interest in Lot 604 to Valmarl and Hearn and Valmarl and Hearn mortgaged Lot 604 to the Bank of Queensland Ltd, the third defendant. The 2010 Deed was executed on 13 October 2010. The parties to the 2010 Deed are Valmarl and Hearn who are described as the Transferee, the City and the Bank of Queensland which is described as the Mortgagee. The deed recites that by executing the deed the Transferee agrees to be bound by the terms of the 1983 Deed. The operative clause of each of the 2006 Deed and the 2010 Deed is cl 2 which provides that the Transferee agrees with the City that the Transferee will observe and perform all the provisions of the 1983 Deed on the part of the Original Owner, that is Erceg Management, Barrowford and Professional Design & Drafting Services, to be observed and performed in like manner as if the Transferee had been named as the Original Owner in the 1983 Deed.

22 In August 2014 a contract for sale was made between Valmarl and Hearn on the one hand and the fourth defendant, Rainwave, on the other hand by which Rainwave agreed to purchase Lot 604 conditional upon the title to Lot 604 being clear of any caveats lodged by a third party other than the City. Mr and Mrs Maio had registered caveat N690116 on 30 June 2014 in which they claimed an interest in Lot 604 under the 1983 Deed, the 2010 Deed and s 11(1) or (2) of the Property Law Act 1969 (WA) (PLA).

23 A shopping centre is on Lot 602. The tavern development proposed on Lot 604 never proceeded. A service station was constructed between August 1986 and April 1987 and subsequently operated on Lot 604 until it was demolished in 2008 and the lot has subsequently been vacant except for the bituminised car bays and driveways. On 24 July 2014 the Metro NorthWest Joint Development Assessment Panel (JDAP) gave development approval to the proposed office and residential development on Lot 604.

24 In 1983 there were, and still are, 10 car bays on the eastern side of Lot 604 and five bays on the northern side of the lot facing Sanderling Street. In 1983 there were also eight bays on the southern side of Lot 604 and a further eight bays adjacent to but to the west of the 10 bays on the eastern side of Lot 604. There has been, at least since 1983, crossover access to Lot 602 from Cedric Street and separate crossover access to each of Lot 602 and Lot 604 from Sanderling Street.

25 The plaintiffs fear that if Lot 604 is developed in accordance with the development approval, it will interfere with access over Lot 604 and the use of the parking bays on Lot 604 by the owners, tenants and customers of the shopping centre on Lot 602. The plaintiffs' objective appears to be to prevent any development of Lot 604 which will interfere with access over Lot 604 and the use of parking bays on Lot 604 currently enjoyed by the owners, tenants and customers of the shopping centre on Lot 602.

26 The plaintiffs allege that on a proper construction of the 1983 Deed the Owner covenanted with the City to grant certain benefits as they existed on 11 May 1983 to purchasers of Lot 602, successors in title and other persons lawfully entering Lot 602. The benefits are said to be the benefit of the covenants in the 1983 Deed by the Owner, that is the owners of Lots 78, 79 and 80 which became Lots 602, 603 and 604 after subdivision:

(1) not to suffer or allow vehicular access to or egress from Lot 604 from or to Cedric Street (clause 2(b));

(2) in carrying out any development of Lot 604 to ensure that the design of, colours of and materials used in the buildings and improvements to be constructed and made thereon are the same as the design of, colours and materials used in the existing shopping centre on Lot 602 and that any such development of Lot 604 in the existing shopping centre on Lot 602 have the appearance of a single complex, clause 2(c);

(3) not to erect or permit to be erected a fence on or about the common or dividing boundaries of Lot 602 and Lot 604 or any of those boundaries or otherwise obstruct or impede the free movement and thoroughfare of persons and vehicles on either of those lots or from one lot to the other (clause 2(d));

(4) upon sale or transfer of either Lot 602 or Lot 604 to grant to the purchaser therefore and the successors in title, tenants, invitees, licensees, customers and visitors of such purchaser and all other persons lawfully entering the lot sold the right to use for the purpose of parking motor vehicles the vehicle parking areas situated on the unsold lot together with full and unrestricted access from one lot to the other both vehicular and on foot (clause 2(e));

(5) the grant referred to in clause 2(e) containing covenants requiring the purchaser of Lots to enter into a deed of covenant to observe and perform the provisions of the deed (clause 2(e));

(6) not to sell Lot 604 unless the purchaser has executed a deed of covenant requiring that person to observe and perform the covenants, conditions and stipulations in the deed (clause 2(g)).

27 The plaintiffs claim a declaration that the 1983 Deed and the 2010 Deed have granted to the plaintiffs the benefit of the covenants in cls 2(b), (c), (d), (e) and (g) of the 1983 Deed which they described as the Benefits. The plaintiffs further claim an order that the second defendants grant to the plaintiffs the Benefits and an order that the City and the second defendants execute and deliver to the plaintiffs a deed of covenant upon the terms and conditions contained in the 1983 Deed to be prepared by the plaintiffs.

28 The plaintiffs' primary claim is based on the contract constituted by the 2010 Deed which they say is to be read with the 1983 Deed. Of course, the plaintiffs are not a party to the 2010 Deed. The plaintiffs claim that on the proper construction of the 1983 Deed, the 2006 Deed and the 2010 Deed, the Benefits are, under s 11(1) of the PLA, enforceable by the plaintiffs against the defendants. Alternatively, the plaintiffs claim that on the proper construction of the three deeds, the Benefits are, under s 11(2) of the PLA, enforceable by the plaintiffs against the defendants.

29 The plaintiffs do not seek to enforce the covenants contained in cl 2(b) of the 1983 Deed, not to suffer or allow vehicular access to or egress from Lots 604 from or to Cedric Street, or the covenant in cl 2(c), to carry out any development of Lot 604 in the same design, colours and materials as the existing shopping centre on Lot 602. The plaintiffs seek to enforce the covenants in cls 2(d) and (e). Clause 2(d) is not to erect or permit to be erected a fence on or about the common or dividing boundaries of Lot 602 and 604 or obstruct or impede the free movement of persons and vehicles on those lots or from one lot to the other. Clause 2(e) is said to be a covenant to permit the plaintiffs and their tenants and customers to use the parking bays on and access on Lot 604 in the manner set out in exhibit 103, which is Annexure C to these reasons for judgment. The defendants submit that the covenants in the 2010 Deed and the 1983 Deed are not enforceable by the plaintiffs.

30 The plaintiffs' alternative claim is that Lot 604 is subject to restrictive covenants in the terms of the covenants in the 1983 Deed which will run with Lots 602 and 604 and are enforceable in equity by the plaintiffs. This is said to be a claim based on the rule in Tulk v Moxhay [1848] 41 ER 1143. At trial the plaintiffs clarified that they seek to enforce only the covenants in cl 2(d) and (g) of the 1983 Deed on that basis. The defendants submit that there is no restrictive covenant running with Lots 602 and 604.

31 The plaintiffs' third alternative claim is that if neither of those claims are made out then the plaintiffs claim they have acquired the benefit of access and car parking bays on Lot 604 by way of easements acquired by enjoyment or user under the doctrine of lost modern grant or alternatively under the Prescription Act (WA) adopted in Western Australia by the Imperial Acts Adopting Act 1836 (WA) (6 Will IV No 4). The rights arising from the easement are said to be the right to continuous free and unimpeded use of the Use Area of Lot 604 for pedestrians and vehicles. The Use Area is the area on the northern, eastern and southern part of Lot 604 which has been used by the owners, tenants and customers of the shopping centre on Lot 602 for vehicle and pedestrian access to the shopping centre and for parking and for access and egress to and from Sanderling Street.

32 All of those claims are denied by the second defendants. The City denies that the plaintiffs are entitled to enforce the Benefits under the 2010 Deed or the 1983 Deed or in equity but makes no submission in relation to the easement claims under the doctrine of lost modern grant or the Prescription Act (WA).

33 The final claim by the plaintiffs is an allegation that the City knew or should have known that the Benefits under the 1983 Deed enhance the commercial viability of the shopping centre on Lot 602, the City owed to persons taking an interest in Lot 602 a duty to apply the 1983 Deed in its terms and to require the owners from time to time of Lot 604 to comply with the 1983 Deed which it has failed to do. In their written submissions the plaintiffs submit that they would be entitled to damages against the City if the duty of care were breached. The City says that the plaintiffs have not pleaded that the City breached the duty of care, have not pleaded that the plaintiffs have suffered loss or damage as a result and have not pleaded a claim for damages. The City says that for that and other reasons it is not open to the plaintiffs to claim damages for breach of duty against the City.

34 The second defendants concede that if the plaintiffs are found to have the rights they assert under the Prescription Act the approved development is inconsistent with those rights because it alters the location of the car bays. In those circumstances the second defendants seek an order under s 129C(1) of the Transfer of Land Act extinguishing and discharging any easements or restrictions on the user of Lot 604.

Plaintiffs' claim under Property Law Act s 11(1)

35 The plaintiffs cannot enforce the 1983 Deed against the defendants because neither the plaintiffs nor the second defendants are parties to the 1983 Deed. The plaintiffs claim to enforce the 2010 Deed against the defendants who are parties to that deed. The plaintiffs are not parties to the 2010 Deed. They claim they are entitled to enforce the covenants in the 1983 Deed against the defendants on the basis that the covenants are incorporated into the 2010 Deed and the plaintiffs are entitled to enforce those covenants against the defendants by reason of PLA s 11(1). That section provides:

(1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he is not named as a party to the conveyance or other instrument that relates to the land or property.

36 PLA s 11(1) is based on the Law of Property Act 1925 (UK) s 56(1). PLA s 11(1), like its English equivalent, has been given a narrow construction. The provision does not abolish the doctrine of privity of contract: Beswick v Beswick [1967] UKHL 2; [1968] AC 58; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166. However, in some situations the statutory provision may operate to extend the persons who can be regarded as covenantees. A person who was not mentioned by name as a covenantee but was designated as a covenantee under a generic description in the deed in which the covenant was contained may be able to enforce the covenant.

37 PLA s 11(1) does not entitle the plaintiffs to enforce the covenants in the 2010 Deed or the covenants in the 1983 Deed to the extent they are incorporated into the 2010 Deed. PLA s 11(1) does not allow a third party to sue on a contract merely because it is made for his benefit; the contract must purport to be made with him: White v Bijou Mansions Ltd [1937] Ch 610, 625 (Simmonds J); Jones v Bartlett [73] (Gaudron J), [142] (Gummow & Hayne JJ). The 2010 Deed does not in its terms, or as a matter of substance, purport to make a covenant with the plaintiffs, whether by name or as owners of Lot 602. Clause 2 of the 2010 Deed states that the Transferee, that is the second defendants, agree with the Local Government, that is the City, that the Transferee will observe and perform the provisions of the 1983 Deed on the part of the Original Owner (that is the Owner under the 1983 Deed) to be observed and performed in like manner as if the Transferee had been named as the Original Owner in the 1983 Deed. The covenants in the 1983 Deed are set out in cl 2 of the 1983 Deed. The clause states that the Owner 'hereby covenants with the [City]'. The covenants may have benefited future owners of Lot 602 but the City, and the other parties to the 1983 Deed, did not purport to covenant with them.

Plaintiffs' claim under Property Law Act s 11(2)

38 Section 11(2) of the PLA provides:

(2) Except in the case of a conveyance or other instrument to which subsection (1) applies, where a contract expressly in its terms purports to confer a benefit directly on a person who is not named as a party to the contract, the contract is, subject to subsection (3), enforceable by that person in his own name but

(a) all defences that would have been available to the defendant in an action or proceeding in a court of competent jurisdiction to enforce the contract had the plaintiff in the action or proceeding been named as a party to the contract, shall be so available;

(b) each person named as a party to the contract shall be joined as a party to the action or proceeding; and

(c) such defendant in the action or proceeding shall be entitled to enforce as against such plaintiff, all the obligations that in the terms of the contract are imposed on the plaintiff for the benefit of the defendant.

I have found that PLA s 11(1) does not apply and hence the question is whether the 2010 Deed, read with the 1983 Deed, expressly in its terms purports to confer a relevant benefit directly on the plaintiffs. In their written submissions the plaintiffs submit that the Owner under the 1983 Deed, that is the owners of Lots 602 and 604 at the time, held both Lot 602 and Lot 604 and they arguably conferred benefits as owners of Lot 602 on themselves as owners of Lot 604 and vice versa. The plaintiffs submit that that is consistent with an intention to confer mutual benefits. The defendants submit that neither the 1983 Deed nor the 2010 Deed expressly purports to confer a benefit directly on the plaintiffs.

39 The effect of cl 2 of the 2010 Deed is that the second defendant's covenant with the City in the same terms as the covenants by the Owner in the 1983 Deed. It is therefore necessary to consider the covenants by the Owner in the 1983 Deed. The plaintiffs do not seek to enforce all of the covenants in the 1983 Deed but it is necessary to refer to covenants other than those sought to be enforced by the plaintiffs because the character of those covenants is relevant to characterising the covenants which the plaintiffs do seek to enforce.

40 The covenant in cl 2(a) of the 1983 Deed is that the Owner is not to use or develop Lot 604 without the consent of the City which the City is at liberty to grant or refuse in its absolute discretion. The nature and character of that covenant is to facilitate planning control by the City over the use and development of Lot 604. The second covenant (cl 2(b)) is a covenant by the Owner not to allow vehicular access to, or egress from, Lot 604 from or to Cedric Street. That covenant does not relate to the use or development of Lot 602 or the use of Lot 604 by the owners, tenants or customers of the shopping centre on Lot 602. It is to facilitate planning control and, in particular, control of the movement of vehicles to or from Lot 604 to or from Cedric Street. The third covenant (cl 2(c)) is a covenant by the Owner in that, carrying out any development of Lot 604, it will ensure that the design, colours and materials used are the same as in the existing shopping centre on Lot 602. The covenant refers to Lot 602 but not in a way that refers to the use or development of Lot 602 or the use or development of Lot 604 to the benefit of the owners of Lot 602. It provides a tool for planning control in the interest of the City and the immediate locality.

41 The fourth covenant (cl 2(d)) is a covenant by the Owner not to erect a fence or to otherwise obstruct or impede pedestrian or vehicular access on or between Lot 602 and Lot 604. In my opinion, the covenant does not 'expressly in its terms [purport] to confer a benefit directly on' the owner of Lot 602. First, the owner of Lot 602 is a covenantor which undertakes the burden of the covenant. Secondly, the covenant does not distinguish between the Owner as owner of Lot 602 and owner of Lot 604. The covenant is a restraint upon the Owner carrying out the relevant activity on the whole of the land. Thirdly, it is apparent from my consideration of the 1983 Deed in its context that the deed does not purport to confer a benefit directly on any person or entity except the City. The benefit conferred on the City is in its capacity as a planning authority, not a landowner.

42 The fifth covenant (cl 2(e)) is, as I have said, not a covenant that the Owner must provide access and reciprocal parking. The clause made no provision for access or reciprocal parking rights that were current at the date of execution of the deed. Lots 602 and 604 were then in common ownership and the owner could ensure access and reciprocal parking without covenanting with itself to do so. The clause made provision for access and reciprocal parking only in the event that Lot 602 or Lot 604 were sold.

43 I find that PLA s 11(2) does not apply to make the covenants in cl 2 of the 1983 Deed enforceable by the plaintiffs. Upon the proper construction of the 1983 Deed it does not intend to confer any benefit on any third party. There is no express conferral of a benefit on future owners or tenants of Lot 602. No specific persons or classes of persons are referred to in the covenants at cls 2(b), (c), (d) or (g). Those clauses do not identify any person as a third party beneficiary. Clause 2(e) does not contain any statement that the covenants are for the benefit of the classes of persons described in them. The owners of Lot 602 or their successors are incidental beneficiaries only.

44 The plaintiffs' claim to enforce the covenants in the 2010 Deed and the 1983 Deed under the PLA s 11(2) fails.

45 The plaintiffs claim that the 1983 Deed gave rise to restrictive covenants benefiting the owners of Lot 602 or the owners of the lots in strata plan 11718 and are enforceable in equity. The burden of a covenant does not run at law except where there is privity of estate between the parties. However equity may enforce a covenant against the assignee of the covenantor if the assignee took with notice of the covenant: Tulk v Moxhay. The plaintiffs said little in advance of this claim in either their written or oral submissions.

46 The second defendants submitted that this claim must fail because, to run with the land, the covenant must touch and concern land of the covenantee, the doctrine does not extend to the case in which the covenantee has no land capable of enjoying, as against the land of a covenantor, the benefit of the restrictive covenant. I accept that submission. The covenantee of the relevant covenants is the City. At the time of making the 1983 Deed it had no interest in Lot 602 or Strata Plan 11718 or any interest in any land which might have been benefitted by those covenants.

47 Furthermore, to be enforceable as a restrictive covenant in equity, a covenant must be negative. Positive covenants cannot run with the land: Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403 (CA); Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 351 [16]; Westpoint Corporation Pty Ltd v Registrar of Titles [2004] WASC 189 [51] [52]. Positive covenants cannot run with the land in equity. The covenant which the plaintiffs seek to enforce in cl 2(g) is positive in nature. The covenant in substance is to procure a purchaser to execute a deed of covenant requiring the purchaser to observe and perform the covenants, conditions and stipulations in the deed.

48 Easements may be acquired by prescription under the doctrine of lost modern grant or the Prescription Act 1832 (UK) which was adopted in this State in 1836 by 6 Will IV No 4. Under the doctrine of lost modern grant, where there has been 20 years enjoyment of an easement as if of right the courts will presume that an easement was granted but the grant was subsequently lost. The doctrine of lost modern grant was not affected or repealed by the Prescription Act (UK) which did little more than restate the doctrine in statutory form. For present purposes it does not matter whether the easements were created under the doctrine of lost modern grant or the Prescription Act (UK) because differences between the two are immaterial on the facts of this case. Both require proof of 20 years continuous user as of right.

49 The plaintiff claims an easement to use part of Lot 604 as an access way and car park for the shopping centre businesses. The second defendants deny that any such easement arises under the doctrine of lost modern grant or under the Prescription Act (WA).

1. there must be a dominant and a servient tenement;
2. an easement must 'accommodate' the dominant tenement;
3. the dominant and servient owners must be different persons; and
4. a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant: Ellenborough Park, Re; Davies (decd), Re; Powell v Maddison [1956] 1 Ch 131, 163.

51 The claimed servient tenement is Lot 604. The second defendants submit that it is unclear what the plaintiffs contend to be the dominant tenement or tenements. In their statement of claim the plaintiffs plead that the easement rights have been used and enjoyed by the registered proprietors of Lot 602 for a period of more than 20 years since 11 May 1983 and is continuing. However, Lot 602 existed only for a short time and has ceased to exist since 19 August 1983. The agreed facts are that the title for Lot 602 was created on 19 August 1983, that Strata Plan 11718 subdividing the land formerly contained in Lot 602 was registered on 19 August 1983 and the Certificate of Title for Lot 602 was cancelled on 19 August 1983. What then is the putative dominant tenement?

52 An easement is a right annexed to land to utilise other land of different ownership in the particular manner: Hallsburys Laws of England (4th ed) vol 14, page 4. The dominant tenement is the parcel of land with the benefit of the easement. An easement cannot exist in gross, it must always be appurtenant or annexed to a dominant tenement: Butt Land Law (6th ed) [16.10]. An easement must accommodate the dominant tenement, that is the easement must benefit the dominant tenement and be connected with its enjoyment. An easement that accommodates the dominant tenement is presumed also to accommodate each part of it. Hence, if the dominant tenement is later subdivided the easement is presumed to accommodate the subdivided parts enabling successive owners of those parts to exercise the easement: Butt [16.16]. However, where the dominant tenement is consolidated with other land the easement does not benefit the whole of the consolidated land. Rather, the easement continues to benefit only that part of the larger whole that was the former dominant tenement: Butt [16.17], Re Eddowes (1991) 2 Qd R 381, 383. Therefore, where the land is subdivided before the easement has been enjoyed for 20 years, there is no easement to attach to each of the lots into which the land has been subdivided. In this case the parking easement never accommodated Lot 602 because that lot was transformed into the strata property as soon as it was created.

53 A prescriptive easement must be appurtenant to the fee simple of the dominant tenement: Gale on Easements (19th ed) [493]. The enjoyment of an easement by a tenant will inure for the benefit of the fee simple. The first and second plaintiffs are the registered proprietors of lots on the strata plan. They may claim an easement by prescription for the benefit of the lots of which they are the registered proprietors. The third plaintiff is the tenant of the lot of which the first plaintiffs are the registered proprietors. The possession of the third plaintiff as tenant is the possession of its landlord, the first plaintiffs. An easement of right of way and parking on the User Area by the occupiers and visitors to Lot 6 is an easement appurtenant to Lot 6 and must be claimed by the registered proprietor, the first plaintiffs. The third plaintiff acquires no right of easement separate from that of the registered proprietor of Lot 6, the first plaintiffs.

54 The plaintiffs cannot claim an easement on behalf of others, including owners of other lots in Strata Plan 11718. The fourth plaintiff is the strata company established under s 32 of the Strata Titles Act for Strata Plan 1178. It claims to sue as representative of the proprietors of the lots in Strata Plan 11718 pursuant to s 33(1) of that Act. Section 33(1) provides that where the proprietors of the lots are jointly entitled to take proceedings against any person, any such proceedings being proceedings for or with respect to common property, the proceedings may be taken by the strata company. An easement acquired by prescription is appurtenant to the dominant tenement, the tenement which benefits from the easement. It is not the common property which benefits from the easement but the individual lots of the strata scheme. Accordingly, proceedings for a declaration of the relevant easements are not proceedings for or with respect to the common property and cannot be brought by the strata company.

55 In this case, the plaintiffs must establish that the easement has accommodated each lot of which they are the registered proprietors for 20 years.

56 The second defendants submitted that the dominant tenement must be adjacent to the servient tenement and cited Todrick v The Western National Omnibus Co Ltd [1934] 1 Ch 190 in support of that proposition. Professor Butt in the sixth edition of Land Law disagrees:

The dominant and servient tenements need not be contiguous. But they must be close enough for the right claimed over the servient tenement to accommodate the dominant tenement in fact. As a practical matter, unless the parcels are contiguous or almost contiguous, it is unlikely that the easement will accommodate the dominant tenement [16.15].

The authorities cited by Professor Butt in support of those propositions include Todrick v Western National Omnibus Co Ltd as well as Re Ellenborough Park (175), Pugh v Savage [1970] EWCA Civ 9; [1970] 2 QB 373, 381; Hamilton v Joyce [1984] 3 NSWLR 279, 291; Dewhirst v Edwards [1983] 1 NSWLR 34, 51; Dukart v District of Surrey (1978) 86 DLR (3d) 609, 617; Elliott v NNRP Pty Ltd (Unreported, NSWSC, 8 November 1994) (Bryson J). I accept the statement of the law by Professor Butt. In Pugh v Savage at 381 Cross LJ said:

Todrick v Western National Omnibus Co Ltd shows that a right of way may exist for the benefit of a dominant tenement although between the dominant tenement and the servient tenement there is some intervening land. In the Todrick case itself, that intervening land was in fact owned by the owner of the dominant tenement, but all three members of the court expressed the view that, providing that the dominant owner was able to get across the intervening land, though only by the consent of the third party, the way claimed might still be a good right of way if it was sufficiently close to the dominant land to be sensibly described as appurtenant to and for the benefit of the dominant land.

57 In this case the putative dominant tenements are each of the strata lots on Plan 1178 of which the plaintiffs are the registered proprietors. The only land between those lots and Lot 604 is the Strata Plan common property. The owners of each of the strata lots have a right to use that common property for access to their lot and for visitors to access their lot. The part of Lot 604 over which the easement is claimed is sufficiently close to the strata lots to be sensibly described as appurtenant to and for the benefit of those putative dominant tenements.

The easement accommodates the dominant tenements

58 An easement must accommodate the dominant tenement. By this it is meant that the easement must benefit the dominant tenement and be connected with its enjoyment. A mere personal privilege or commercial advantage intended to benefit the owner of the dominant tenement but unconnected with its occupation cannot be an easement. The fact that an easement enhances the commercial value of the land is relevant but not decisive: Re Ellenborough Park [173] [175]. A right may sufficiently accommodate land if it benefits a business carried on upon the land: Moody v Steggles (1879) 12 Ch D 261, 266 (Fry J). There must be a sufficient connection between the activities carried on the dominant tenement and the rights granted over the servient land: Clos Farming Estates Pty Ltd v Easton [2001] NSWSC 525 affirmed [2002] NSWCA 389.

59 The evidence is that customers of the shops in the shopping centre parked their cars in the parking bays on Lot 604 whilst shopping at the shopping centre. The claimed easement benefits the businesses carried on by the occupants of the shopping centre. In this case the claimed easement relates to the use and enjoyment of the land. There is sufficient connection between the carrying on of the businesses by the plaintiffs in the shopping centre and the use of the servient tenement for access and parking for the easement to accommodate the dominant tenements, that is the land formerly comprised in Lot 602 and now comprised in Strata Plan 11718 of which the plaintiffs are the registered proprietors.

60 The owner of the servient tenement, Lot 604, and the putative dominant tenements, the lots in Strata Plan 11718 of which the plaintiffs are the registered proprietors, are different persons.

61 The right of way over the Use Area claimed by the plaintiffs, including over the bitumen crossover to Sanderling Street, is capable of forming the subject matter of a grant. A right to park a car somewhere in a defined area is capable of being an easement: Gale on Easements (19th ed) [9119].

62 The defendants' submit that there is no evidence adduced on behalf of the plaintiffs demonstrating that any car parking on Lot 604 utilised their particular premises sufficient to establish a use enjoyed as of right by that particular dominant tenement. The second defendants submitted that all that has been established is that cars have parked on Lot 604 from time to time, the occupants of which have not been shown to use any particular shop owned or operated by way of any of the plaintiffs for over 20 years. The second defendants submitted that all cases of lost modern grant demonstrate the precise connection that must be established between the use by the owner of the dominant tenement and the particular area over which a right has been asserted. Evidence of parked cars for shoppers, even if that be proved, is not sufficient evidence to justify the fiction of an assumed right specific to each of the plaintiffs' dominant tenements, as distinct from their generic involvement in a conglomeration of strata titles operating in the nature of a shopping centre.

63 The only evidence of use of the Use Area of Lot 604 by the occupiers and visitors to the shopping centre is six witness statements adduced by the plaintiffs. They were not crossexamined. The defendants did not adduce any testamentary evidence. The evidence establishes the following.

64 Sometime between June 1982 and May 1983 the land which is now comprised in Strata Plan 11718 and was formerly comprised in Lot 602 was developed as a shopping centre. The first plaintiffs, Mr and Mrs Maio, became the registered proprietors of Lot 6 in Strata Plan 11718 on 23 December 1985. A supermarket business was being conducted on that land. There was a bitumen driveway or crossover to Sanderling Street and bituminised parking bays on the common property of Strata Plan 11718. There was also a bituminised driveway or crossover to Sanderling Street and bituminised parking bays on the eastern side of Lot 604. There were also bituminised parking bays on the south side of Lot 604.

65 Between August 1986 and April 1987 a service station was constructed on Lot 604. That resulted in the parking bays on the southern boundary of Lot 604 being removed. After the construction of the service station there were five parking bays on the northern boundary of Lot 604 abutting Sanderling Street and 10 parking abutting the eastern boundary of Lot 604. There were also a further five parking bays within Lot 604 which were enclosed with concrete kerbing. The service station was demolished in 2008 and since then Lot 604 has been vacant except for the bituminised crossover to Sanderling Street and the parking bays on the northern and eastern boundaries of Lot 604. The development of Lot 604 from the time the service station was demolished in 2008 is shown on photograph B which is annexed to these reasons for judgment.

66 The entrance to the shopping centre faces the south-east corner of Lot 604. Most of the patrons of the shopping centre came by car, accessing the parking areas by use of the Sanderling Street crossover into Lot 604 and parking their cars in the bays in the middle of the car parking area facing the shopping centre entrance. Every day one or more of the parking bays on the eastern part of Lot 604 were used by patrons of the shopping centre to park their car. If bays in this car parking area were not available the patrons would drive their cars around the car parking area until a bay became available. Part of Lot 604 was used by patrons of the shopping centre to go into and out of the car parking areas and to manoeuvre their vehicles into parking bays and to park their vehicles in parking bays. The use of the car bays and access way on Lot 604 by customers of the shopping centre has been continuous and uninterrupted since 1985. The part of Lot 604 used by patrons of the shopping centre to go into and out of the car parking areas, to manoeuvre their vehicles into parking bays and to park their vehicles in the parking bays is the Use Area shown in photograph A annexed to these reasons for judgment. The Use Area includes both the driveway areas and the parking bays on Lot 604 used by visitors to the shopping centre on Lot 602. Some patrons of the shopping centre walk to it. Many of the pedestrians walk across the Use Area to get to and from the entrance to the shopping centre. The supermarket business is the main business in the shopping centre and most of the patrons of that business are regular repeat patrons. Most of the patrons of the shopping centre are the customers of the supermarket business. Most of the people using the Use Area walk straight into the supermarket. The entrance to the shopping centre leads straight into the entrance to the supermarket. The majority of the persons walking across the Use Area are customers of the supermarket. The use of the Use Area has been continuous and uninterrupted from at least December 1985 to the end of 2013.

67 I find that the use of the Use Area for access, egress and parking by the occupiers of and visitors to the supermarket on Strata Plan 11718 has been continuous and uninterrupted since at least 1985 and has been sufficient in extent to give rise to an easement by prescription in favour of the registered proprietors of the land on which the supermarket is situated, the first plaintiffs.

68 There is less evidence about the use of the Use Area by visitors to other shops in the shopping centre. There is evidence concerning the use of the Use Area by visitors to the pharmacy on Lot 11 on Strata Plan 11718 in the shopping centre. Lot 11 faces the car parking areas situated on Lots 602 and 604. Some of the patrons of the shopping centre that have used the Use Area since late 1982 are customers of the pharmacy who park their car in parking bays on Lot 604 and walk into the pharmacy. There is also evidence of the use of the Use Area by visitors to the hairdressing business on Lot 7 on Strata Plan 11718. The evidence is limited but I infer from the evidence of Dominico Calabro that the visitors to the shopping centre who used the Use Area include customers of the hairdressing business. The registered proprietors of those lots and other lots on Strata Plan 11718 are not parties to this action. No declaration that the occupiers or visitors to those lots have the right to use the Use Area as a right of way or for parking may be made in this action.

69 The third plaintiff is the registered proprietor of Lots 1 and 2 on Strata Plan 11718. However, there is no, or no sufficient, evidence of the use and enjoyment of the Use Area by occupiers or visitors to those lots.

70 The second defendants submitted that the doctrine of lost modern grant is a legal fiction available only where the state of affairs between the parties cannot otherwise be explained and the existence of a document permitting access to one's land provides an explanation which precludes the operation of the doctrine: Wayela Nominees Pty Ltd v Cowden Ltd [2003] WASC 210 at [232]. The second defendants submit that the 1983, 2006 and 2010 deeds on their proper construction do not grant an enforceable right of easement in favour of the plaintiffs but they nonetheless explain why the second defendants and their predecessors in title have continued to allow their land to be used for parking and access and egress by members of the public who may be visiting any of the shops in the shopping centre.

71 A claim to an easement under the doctrine of lost modern grant is not defeated by evidence that no grant was in fact made. Moses and Sherry in 'Unregistered Access: Wheeldon v Burrows Easements and Easements by Prescription over Torrens Land' (2007) 81 ALJ 491 summarise the law in this way:

Historically, the doctrine of lost modern grant moved from a rebuttable presumption of fact to an irrebuttable presumption of law. Eventually the fiction that an easement had been expressly granted was seen as merely giving effect to a substantive right. The only remaining relevance of the fiction itself was the fact that the doctrine of lost modern grant did not apply where a grant would be impossible (as where the presumed grantor was under a legal incapacity), illegal, or extremely unlikely (as where it would have required an Act of Parliament). Short of impossibility or illegality, evidence that no grant was made does not prevent the court presuming a lost modern grant (498).

72 Furthermore, the method of acquiring an easement by prescription under the Prescription Act creates an alternative to reliance on the fiction of a lost grant. Like the doctrine of lost modern grant, a person who has used an easement continuously for 20 years 'as of right' acquires the easement by prescription although the 20 year period must continue up to the time of action. The acquisition of an easement by prescription under the Prescription Act (WA) does not depend upon the assumption of a lost grant and is not defeated by showing that there was in fact no grant.

73 In any event, I am not satisfied that the evidence establishes that the owner of Lot 604 and the owners of the lots in Strata Plan 11718 considered that the latter had a right of way and parking over Lot 604 granted by the 1983 Deed. However, that is not the end of the matter. The plaintiffs must establish that their user of the Use Area was 'as of right'.

74 To establish an easement by prescription under the doctrine of lost modern grant or the Prescription Act (WA) the claimant must prove that he or she has used an easement continuously for 20 years 'as of right'. Use is 'as of right' if it was nec vi (without force) nec klam (without secrecy; with the actual or constructive knowledge of the servient owner) and nec precario (without licence or permission).

75 User of land which is acquiesced in by the owner is 'as of right'. User which is with the licence or permission of the owner is not 'as of right'. The authors of the 19th edition of Gale on Easements at [4115] say that there is no reason why the grant of permission should be confined to the grant of oral or written consent and that permission may be inferred from the owner's acts. There is no reason in principle why an implied permission may not defeat a claim to use 'as of right'. In R (Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889 the House of Lords held that a licence or permission may be implied from all the circumstances and user pursuant to such an implied licence would be 'precario': at [5], [43], [59], [75] and [83].

76 The authors of the 19th edition of Gale on Easements say at [4125] that the fact that enjoyment takes place under a mistaken view of his rights entertained by the dominant owner does not prevent enjoyment being 'as of right' so as to defeat prescription. The authors rely principally on the decision of the Court of Appeal of England and Wales in Bridle v Ruby [1989] QB 169.

77 Ruby contended that Bridle and his predecessors in title had exercised a right of way in the mistaken belief that there had been an express grant of an easement in 1956. Ruby argued that the doctrine of lost modern grant did not apply when the evidence showed that there was a better explanation for the exercise of the purported right of way, namely, that the plaintiff and his predecessors in title mistakenly believed that they were exercising an express right of way conferred by a transfer in January 1956 to the plaintiffs' predecessor in title. Ruby contended that a lost modern grant will only be presumed where the state of affairs is otherwise unexplained and a mistaken belief on the part of the claimant amounted to an alternative explanation for the user so that no lost modern grant should be presumed. Parker LJ rejected this contention. Parker LJ held that where a right has been asserted and acquiesced in on a particular basis, the claimant cannot thereafter set up his claim on any other ground but where a claimant asserts a right in the mere mistaken belief that such right has been conferred when it has not, this does not negative any claim by prescription by lost modern grant or the Prescription Act (WA). Ralph Gibson LJ agreed with the judgment of Parker LJ and added:

For mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted. The requirement that user be 'as of right' means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner's permission. If the owner is not going to submit to the claim, he has the opportunity to take advice and to decide whether to question the asserted right. The fact that the claimant mistakenly thinks that he derived the right, which he was openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right (178E 178G).

Ralph Gibson LJ said that the nature of some mistakes as to the legal origin of the right asserted may be such that the court, in considering issues of fact as to the alleged acts of enjoyment, and in considering whether the user was 'as of right', will find the mistake a relevant factor in deciding those issues of fact. However, his Lordship saw

no reason ... to attach any significance to the mere fact of such subjective mistakes which ... are not shown to have affected the conduct of the claimant or the understanding of that conduct by the owner of the land over which the right is asserted (178H).

78 The online edition of Halsburys Laws of England at [888] says that where an alleged easement is shown to have been enjoyed by reason of a mistaken view of the rights of the parties entertained by both the dominant and the servient owner, there is no enjoyment as of right upon which a prescriptive claim to the easement can be based. The authorities cited for that proposition are Chamber Colliery Company v Hopwood (1886) 32 Ch D 549; Campbell v Wilson [1803] EngR 473; (1803) 3 East 294, 301 302; and Lord Rivers v Adams (1878) 3 Ex D 361. However, this may be too wide an interpretation of the Chamber Colliery case and the other authorities referred to. In Bridle v Ruby Parker LJ said at (197) that the distinction between the cases is that in the Chamber Colliery case 'there was a common belief that nothing was being asserted or claimed and nothing acquiesced in greater than a right for a limited term' or as he later put it 'user in an asserted but mistaken belief that it is justified on a right of limited duration, which belief is acquiesced in, cannot be the foundation of a grant of unlimited duration'. Gilbert Kodilinye in 'Prescription under Mistake' (1989) 22 CPL 261 at 265 suggests that the better view is that a prescriptive claim may succeed notwithstanding the existence of a common mistake unless, as in the Chamber Colliery case, the conduct of the parties and their relationship shows that they had mistakenly assumed that a contractual or permissive right had been granted.

79 In R v Oxfordshire County Council Ex Parte Sunningwell Parish Council [1999] UKHL 28; [2000] 1 AC 335 Lord Hoffman, with whom the other Law Lords agreed, held that the words 'as of right' in s 15 of the Commons Act 2006 (UK) derived from judicial pronouncements and earlier legislation on the acquisition of rights by prescription. Lord Hoffman discussed the development of the English law of prescription. It became established that user which would justify recognition of a prescriptive right had to be nec vi, nec clam, nec precario: not by force, nor stealth, nor licence of the owner. Lord Hoffman held at page 351 that the unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right in the first case, because rights should not be acquired by the use of force, and the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. The same approach was taken by the UK Supreme Court in R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11; [2010] 2 AC 70.

80 The rules of prescriptive acquisition including the requirement that the easement be enjoyed 'as of right' were considered by the UK Supreme Court in R (Barkas) v North Yorkshire County Council [2015] AC 195 and R (Newhaven Port and Properties Ltd) v East Sussex County Council [2015] UKSC 7; [2015] 2 WLR 601 where the court in each case applied those rules by analogy when considering whether local inhabitants had used land for recreational purposes 'as of right' for more than 20 years and hence could be registered as a town or village green under s 15 of the Commons Act. In Barkas the County Council argued that a playing field had always been held for public recreational purposes under statute with the result that members of the public have always had a statutory right to use the field for recreational purposes and hence there could be no question of local inhabitants having enjoyed recreational pursuits on the field 'as of right' because they have done so 'by right' or 'of right' under the statute. The decision turned on the meaning of 'as of right'. Lord Neuberger, with whom Baroness Hale, Lord Reed and Lord Hughes JJSC agreed, said that the expression 'as of right' had been authoratively discussed by Lord Hoffman in Sunningwell and originates from the law relating to the acquisition of easements by prescription. Lord Neuberger explained:

... the legal meaning of the expression 'as of right' is, somewhat counterintuitively, almost the converse of 'of right' or 'by right'. Thus, if a person uses privately owned land 'of right' or 'by right, the use will have been permitted by the landowner hence the use is rightful. However, if the use of such land is 'as of right', it is without the permission of the landowner, and therefore is not 'of right' or 'by right', but is actually carried on as if it were by right hence 'as of right'. The significance of the little word 'as' is therefore crucial, and renders the expression 'as of right' effectively the antithesis of 'of right' or 'by right' [14].

81 R (Newhaven Port and Properties Ltd) v East Sussex County Council concerned an area of land known as West Beach within the operational land of Newhaven Harbour. Bylaws regulated access to the harbour and use of the harbour for leisure activities. West Beach is wholly uncovered by water for only a few minutes each day. The area of the beach that is uncovered by water varies with the ebb and flow of the tide. For at least 20 years local inhabitants have used the uncovered portion of the beach for lawful recreation. The Newhaven Town Council applied to register West Beach as a town or village green under s 15 of the Commons Act. Before the UK Supreme Court there were three issues. It is not necessary to refer to the first and third issues. The second issue was whether the public had an implied licence to use the beach, as part of the harbour, in light of the bylaws. Lord Neuberger and Lord Hodge (with whom Baroness Hale and Lord Sumption agreed) considered that the bylaws by implication gave members of the public permission to use the beach for lawful recreational pursuits. The question then was whether, in order for the bylaws to operate as an effective licence, it was necessary for the body in whom the land was vested to display or otherwise communicate the bylaws to members of the public. Lords Neuberger and Hodge said that, as the decision in Barkas demonstrates, it is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of the land concerned was permitted in order for their use to be treated as being 'by right' rather than 'as of right'. Their Lordships quoted Lord Neuberger's comment in Barkas that 'where land is held for that [statutory] purpose, and members of the public then use the land for that purpose, the obvious and natural conclusion is that they enjoy a public right, or a publicly based licence, to do so' [23]. Their Lordships concluded that the case before them was indistinguishable from that in Barkas for the purpose of deciding whether the use of the land in question by members of the public was 'as of right'. Their Lordships said:

In this case, as in Barkas, the legal position, binding on both landowner and users of the land, was that there was a public law right, derived from statute, for the public to go onto the land and to use it for recreational purposes, and therefore, in this case, as in Barkas, the recreational use of the land in question by inhabitants of the locality was 'by right' and not 'as of right'. The fact that the right arose from an act of the landowner (in Barkas, acquiring the land and then electing to obtain ministerial consent to put it to recreational use; in this case, to make the Byelaws which implicitly permit recreational use) does not alter the fact that the ultimate right of the public is a public law right derived from statute (the Housing Act 1936 in Barkas; the 1847 Clauses Act and the1878 Newhaven Act in this case). We agree with Lewison LJ, who reached the same conclusion in the court of Appeal, and said at para 138 that given that the inspector rightly found that byelaw 68 was an effective prohibition on swimming in the part of the harbour there referred to, it would be inconsistent then to reject the contention that the byelaw's implied permission for swimming elsewhere in the harbour did not operate as a valid licence [71].

82 Whether the use of the Use Area by the owners of the land on which the shopping centre stands was relevantly 'as of right' is a question of fact and degree. The dominant tenement owners understanding of the conduct of the users of the land is relevant. Whether it would have been reasonable to expect the owner of Lot 604 to resist occupiers and visitors to the shopping centre using the Use Area is relevant. In this case, the conduct of the owner of Lot 604 and the City is important in determining whether it may be inferred that the use of the Use Area by the owners of the lots in Strata Plan 11718 was by implied permission of the owner of Lot 604. The fact that the right to use the Use Area arose or continued from conditions of the approval to commence development of Lot 604 by the City under the City of Stirling District Planning Scheme No 2 is relevant.

83 At the time of the execution of the 1983 Deed Lots 602 and 604 were in common ownership. The lots ceased to be in common ownership when Erceg Management, Barrowford and Professional Design & Drafting Services transferred lots in Strata Plan 11718 to other people starting in September 1983. Lot 1 on which the supermarket is situated was transferred to Len and Mary Seun in October 1983.

84 In May 1982 Erceg Management lodged an application for approval to commence development in two stages. Stage one proposed a shopping centre on the land which became Lot 602. Stage two involved the construction of a tavern on the land which became Lot 604. The proposed development involved reciprocal car parking rights between the shopping centre development and the tavern development. The City approved the shopping centre development but not the tavern development. A subsequent appeal to the Town Planning Appeals Tribunal was upheld in August 1983. The land was subdivided while the appeal was in progress and resulted in the creation of Lot 602 and Lot 604.

85 In January 1985 consultants acting on behalf of the owners of Lot 604 applied to the City of Stirling for rezoning of Lot 604 for the development of a service station. In their report of 29 January 1985, the consultants explained:

In approving of the subdivision the Town Planning Board at the request of the City of Stirling required Erceg Management Pty Ltd to enter into an agreement with the Council to ensure reciprocal car parking rights between the existing shopping centre development on Lot 602 and any future development that was to take place on Lot 604. The reciprocal car parking rights were considered necessary in order to promote the overall integration of the developments on the two adjoining sites. The deed of agreement was executed in May 1983.

The overall development as outlined by Plan No 1 complied with all of the development requirements of the City of Stirling, particularly in relation to access, car parking and retail floor space. In this regard no access was provided to Cedric Street, 196 car parking spaces were proposed for the shops, restaurant and tavern ...

The submission had presented the proposal as an integrated development of Lot 602 and Lot 604 with reciprocal car parking on the two lots.

86 On 21 March 1985 the City informed the consultants that the City Council was prepared to initiate rezoning procedures in order to permit the proposed use as a service station subject to the written acceptance and compliance of conditions including a condition that reciprocal parking and access rights with the adjoining shopping centre be maintained. On 18 August 1986 the City granted to the owner of Lot 604, Anthony and Joan Siciliano, approval to commence development of the service station subject to conditions including that reciprocal parking and access rights with the adjoining shopping centre be maintained and no boundary fencing be erected between the service station and the shopping centre.

87 Mr and Mrs Maio purchased Lot 6 in December 1985. Mr Maio was informed by the selling agent that there were reciprocal rights between Lots 602 and 604. Mr Maio did not have any discussion at any time with any of the owners or occupiers of Lot 604 about the use by patrons of the shopping centre of the Use Area.

88 Sometime before 29 August 1994 someone complained to the City about post and chains installed on the western side of the service station on Lot 604 which denied egress from the south western car parking area of the shopping centre onto Cedric Street. On 29 August 1994 the City wrote to the then owner of Lot 604 requiring that the post and chain barrier be removed immediately on the ground that planning approval for the service station development included the condition that reciprocal parking and access rights with the adjoining shopping centre be maintained and no boundary fencing be erected between the service station and the shopping centre.

89 From at least the time the City approved the development of a service station on Lot 604 in August 1986 to at least the time when the service station was demolished in 2008 the owner of Lot 604 was required by the conditions of the development approval from the City to maintain reciprocal parking and access rights with the adjoining shopping centre. It was a condition of the development approval that the owner of Lot 604 permit the occupiers and visitors to the shopping centre to use the Use Area for parking and access. The right of the owner of the lots on Strata Plan 11718 to use Lot 604 for parking and access derived from the Town Planning and Development Act 1928 (WA). The owner of Lot 604 permitted the use of the lot for access and parking because it was required to do so as a condition of development approval under the City of Stirling District Planning Scheme No 2. The planning scheme was made under, and has full force and effect as if it were enacted by, the Town Planning and Development Act.

90 Furthermore, the first plaintiffs believed that the occupiers and visitors to the shopping centre had a right to use the Use Area not by reason of a right acquired by prescription but by reason of 'reciprocal rights'. Those are rights of a different nature than those which would give rise to an easement by prescription. The reciprocal rights derived from the development approval conditions are of limited duration, they continue only as long as the development approval conditions apply. On the demolition of the service station the conditions ceased to apply.

91 Whether or not the plaintiffs' use of the Use Area from 1985 to at least 2008 was 'as of right' is a question of fact and degree. I find that the user was not 'as of right'. The plaintiffs used the Use Area in enjoyment of a publicly based licence or permission to do so which ultimately arose from the Town Planning and Development Act. The right being exercised by the owner of the lots in Strata Plan 11718 and permitted by the owner of Lot 604 was a right of limited duration. The 'reciprocal rights' being exercised and permitted continued only so long as Lot 604 was used as a service station and the development approval conditions continued to apply. The owner of Lot 604 did not relevantly acquiesce in the use of that lot for parking and access. It was not reasonable for the owner of Lot 604 to stop the use of the Use Area by the occupiers and visitors to Lot 602 because they were required not to do so by the condition attached to the development approval given to build and operate the service station and that condition was enforced by the City in 1994 when the owner of Lot 604 put up a barrier to obstruct access to the shopping centre and its car park along the southern portion of the Use Area.

92 I find that the occupiers and visitors to the supermarket on the land in Strata Plan 11718 did not use and enjoy the right of access, egress and parking on the Use Area 'as of right' but by implied licence or permission from the owner of Lot 604 which was given as a condition of the approval for development of the shopping centre. The plaintiffs' claim based on an easement by prescription must be dismissed.

93 The plaintiffs' written submissions in support of this claim went little further than asserting that it is reasonably foreseeable that the imposition on the proprietors of Lot 604 of the obligation to allow the proprietors of Lot 602 and their invitees to utilise access and parking rights over Lot 604 would enhance the value of Lot 602 and it was reasonably foreseeable that loss of those rights would diminish the value of the interest of the proprietors of Lot 602 in that lot and there was no reason why a liability should not be imposed on the City in the circumstances contemplated. The oral submissions of senior counsel went no further than saying that 'it's a fourth alternative, it's a long way from being a feature of the case'.

94 I will deal with the case equally briefly. It must be dismissed for the following reasons. First, the cause of action for damages for breach of duty of care does not fall within the indorsement on the writ. Secondly, the statement of claim does not plead any allegation of breach of the duty of care, gives no particulars of breach and makes no claim for damages. Thirdly, the plaintiff has not established the alleged duty of care. Fourthly, there is no plea of loss or damage resulting from a breach of the duty of care. Fifthly, there is no evidence of any loss or damage resulting from any breach of the duty of care.

95 As I have found that the plaintiffs' claim to an easement under the doctrine of lost modern grant or the Prescription Act (WA) fails it is not necessary to consider the second defendant's application under the Transfer of Land Act to extinguish or modify the easement. However, as the matter was argued I will set out briefly my conclusions on the assumption that the easement was established.

96 The second defendants concede that the approved development on Lot 604 would be inconsistent with the rights asserted by the plaintiffs to the use of the Use Area.

97 Transfer of Land Act s 129C(1) provides relevantly that the court may wholly or partially extinguish or modify an easement upon being satisfied:

1. that by reason of changes in the character of the property or the neighbourhood or other circumstances the easement ought to be deemed to have been abandoned or to be obsolete or that its continued existence would impede the reasonable user of the land without securing practical benefits to other persons or would unless modified so impede such user; or
2. that the proposed extinguishment or modification will not substantially injure the persons entitled to the easement.

98 I am not satisfied that the conditions for the exercise of the power to extinguish or modify the easement are met. There is no evidence that by reason of changed circumstances the easement ought to be deemed to have been abandoned or to be obsolete. To the contrary, the lots in Strata Plan 11718 have continued to be used as a shopping centre and the Use Area has continued to be used by the occupiers of and visitors to the shopping centre in substantially the same way since 1985.

99 I am not satisfied that the easement does not secure practical benefits to the owners or occupiers of the land in Strata Plan 11718. To the contrary, the use of the crossover from Sanderling Street and the car bays on Lot 604 are of substantial practical benefit to the owners of lots on Strata Plan 11718. There is evidence that the crossover is of practical benefit in that it enables cars to access the parking area adjacent to the shopping centre from Sanderling Street. Without use of this part of Lot 604 there would be a bottleneck on Lot 602 because the two way access would become one way only without the use of the driveway and access way on Lot 604. There is also evidence that every day one or more of the parking bays on Lot 604 were used by patrons of the shopping centre, the most popular parking bays on the east side of Lot 604 and the bays on the west side of Lot 602 and this 'island of bays' have usually been full.

100 As to the condition that the proposed extinguishment or modification will not substantially injure the persons entitled to the easement, it is not sufficient to show that the easement impedes reasonable user. It must also be shown that user is impeded without securing practical benefits to the persons with the benefit of the easement. The main purpose of the section is to ensure the preservation of property rights, not to facilitate the use of land in the best interests of the community: Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 [33]; Owners of Corinne Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1 [102]. There must be proper evidence that the easement is no longer necessary for any reasonable purpose of the person who is enjoying the benefit of it: Frasers Lorne Pty Ltd v Burke [2008] NSWSC 743 [17]; Re Henderson's Conveyance [1940] Ch 835, 846. Practical benefits include the benefit to the businesses carried on on the benefitted land of the use of the Use Area for access and egress and parking. Those are practical benefits. There is no evidence that the proposed extinguishment, discharge or modification of the easement will not substantially injure the persons entitled to the benefit of the easement.

101 I was informed by counsel for the second defendants, Mr Hotchkin, that the plaintiffs have undertaken to withdraw the caveats lodged by them and not to file any further caveats relying upon either of the easements that depend upon the deeds or upon the easements acquired by prescription. I understand that concession to be that the plaintiffs will withdraw the caveats and not file any further caveats if their claims in this action in relation to the deeds and the easements by prescription fail.

102 The City contends that it may enforce the 1983 Deed, 2006 Deed and 2010 Deed if they choose to do so for reasons of orderly and proper planning. The second defendants say that the deed is unenforceable at all. If that is right the City has no caveatable interest and has said that it will withdraw its caveat.

103 The second defendants submit that the 2010 Deed is not enforceable by the City. The nub of the submission is that cl 2(e) requires an act which is now impossible and it is therefore meaningless and unenforceable. Clause 2(e) was central to the 1983 Deed and is not severable. The same goes for the 2010 Deed. Therefore the whole deed fails.

104 The second defendants submit that cl 2(e) could only have been complied with on the transfer of Lot 604 when it was sold out of common ownership. That did not happen. The reciprocity which is inherent in cl 2(e) cannot be achieved. Counsel says that is a species of uncertainty and relies upon Bosaid v Andry [1963] VicRp 67; (1963) VR 465. If a clause requires the parties to do something that is impossible, it is meaningless and void.

105 Bosaid v Andry concerned an agreement said to have been made for the sale by the plaintiffs to the defendants of a property at St Kilda. One issue was whether the contract was uncertain by reason of a clause by which the defendants agreed to execute a further contract upon the form provided by the Estates Agents Act 1956 (Vic). Sholl J said:

There being no such form prescribed, that clause was simply void as impossible to perform and meaningless in the circumstances, but the rest of the contract was not affected: see Nicolene Ltd v Simmonds [1953] 1 QB 543, especially per Denning LJ at pp 5501.

In Nicolene Ltd v Simmonds [1953] 1 QB 543 a contract for the sale of a quantity of reinforcing steel bars was expressed to be subject to 'the usual conditions of acceptance'. The Court of Appeal of England and Wales held that there being no 'usual conditions of acceptance' the condition was meaningless and therefore could be ignored and the contract was complete and enforceable.

106 The clauses in Bosaid and Nicolene were meaningless and impossible to perform because the content of the contractual obligation was uncertain. Whether that is the case here depends upon the proper construction of the relevant provisions of the 1983 Deed and the 2010 Deed. By cl 2 of the 2010 Deed the second defendants agreed with the City relevantly that they will observe and perform the provisions of the 1983 Deed on the part of the Original Owner in the same manner as if they had been named as the Original Owner in the 1983 Deed. Insofar as the second defendants agreed to perform the provisions of cl 2(e) of the 1983 Deed as if they were the Original Owner, the second defendants agreed that if they sold Lot 604 they would:

(1) grant to the purchaser, successors and lawful entrants a right to use the parking bays on, and a right of access over, Lot 602;

(2) reserve to the owner of Lot 602 and their successors and lawful entrants the right to use the parking bays on, and the right of access over, Lot 604; and

(3) not sell Lot 604 unless the purchaser has entered a separate deed with the City to observe and perform the provisions of the 2010 Deed.

107 There is no uncertainty about the meaning of cl 2 of the 2010 Deed and cl 2(e) of the 1983 Deed. The second defendants' submission is that one of the promises made by the second defendants is impossible to perform not because the content of the promises are not certain but because the second defendants do not have the ability to perform the promise. That is not uncertainty which renders a contract void.

108 If, contrary to my opinion, cl 2 of the 2010 Deed is meaningless insofar as it provides for the second defendants to grant to a purchaser of Lot 604 a right to use the parking bays on, and a right of access over, Lot 602 that does not necessarily vitiate the deed. In Nicolene it was held that the phrase 'the usual conditions of acceptance' was meaningless but this did not vitiate the whole contract; the phrase was severable and could be ignored. The question whether the inclusion of a meaningless clause, or part of a clause, vitiates the contract or can be ignored depends on the importance which the parties may be considered to have attached to it. If it is simply verbiage, not intended to add anything to an otherwise complete agreement, or if it relates to a matter of relatively minor importance, it can be ignored. But if the parties intended it to govern some vital aspect of their relationship its vagueness may vitiate the whole agreement.

109 The purpose of the 2010 Deed is disclosed by recital B, 'by executing this document [the second defendants'] agrees to be bound by the terms of the [1983 Deed]'. By cl 2 the second defendants agreed with the City that they will observe and perform the provisions of the 1983 Deed on the part of the Original Owner in the same manner as if they had been named as the Original Owner in the 1983 Deed. By cl 3 the second defendants charged Lot 604 in favour of the City for the purpose of securing the observance and performance by the second defendants of the provisions of the 2010 Deed and of the 1983 Deed and authorised the City to lodge an absolute caveat to protect the rights and interests of the City under the 2010 Deed. The 1983 Deed contained covenants by the owner of Lot 602 and Lot 604. The owner of Lot 604 covenanted not to develop Lot 604 without the consent of the City. The deed created obligations on the owner of Lot 604 and restrictions upon the use and development of the lot. The purpose of the 2010 Deed is to bind the second defendants to observe and perform the provisions of the 1983 Deed, not to secure for the second defendants the benefit of covenants by the owner of Lot 602 under the 1983 Deed. The drafting technique adopted in drafting the 2010 Deed has the effect of including verbiage which is not necessary to give effect to the purpose of the deed. It may be ignored and severed. Thus, I do not accept the second defendants' submission that the 2010 Deed is not enforceable by the City.

110 The City submitted that before 2011 it could have enforced the 1983 Deed as picked up in the 2010 Deed. In 2011 the power to grant or refuse approval for the development on Lot 604 passed to the JDAP under the 2010 amendments to the Planning Development Act 2005 (WA) and the Planning and Development Regulations 2011. The City submits that it cannot now determine the application for development approval for Lot 604 and hence the City cannot purport to predetermine the application by enforcing a deed entered into for planning purposes. Secondly, the City says that a determination by the JDAP is to take effect as if the City had made the determination. This means that, once the JDAP determination is made, any previous power of the City, under the deeds, to prevent or influence the development is subsumed in the JDAP determination. The City cannot purport to undo an approval or refusal by the JDAP. The City says that it could not now enforce the 2010 Deed ahead of a JDAP determination and the City cannot enforce the 2010 Deed after a JDAP determination in any manner that disturbs the effect of the determination. The City says that the court cannot order the City to do what the City does not have power to do. If the 2010 Deed were to be relied upon, it had to be brought to bear inside the process of considering a development application, not afterwards as a separate exercise in veto.

111 The concessions made by the City affect and restrict the manner in which the City may enforce the 2010 Deed against the second defendants. However, the 2010 Deed is not void or unenforceable.

112 The plaintiffs' claim must be dismissed. I will hear from the parties whether or not any other orders should be made.