2610/03 - PASADE HOLDINGS PTY LTD v COUNCIL OF THE CITY OF SYDNEY & ORS
JUDGMENT
1 BRYSON J: By Summons of 2 May 2003 the plaintiff seeks an order under s 88K of the Conveyancing Act 1919, imposing easements over a small strip of land within the block bounded by York Street, King Street, Clarence Street and Barrack Street in the City of Sydney. The plaintiff owns a city office building at 65 York Street, Sydney, on the corner of York and Barrack Street, Lot 1 DP57659, and is redeveloping its building to subdivide it into strata lots. Sydney City Council will not approve its Strata Plan unless the plaintiff complies with conditions of approval of its development application and amongst many other things, the plaintiff must comply with Condition 6:-
The applicant must, before the issue of the strata certificate , demonstrate that there is an easement for light and air to provide light and air to the windows and openings adjoining the southern and western boundaries. Alternatively, a covenant to the approval of Council is to be placed on the title of all units and common property facing the affected boundaries requiring that all windows adjacent to the southern and western boundaries of the site must be sealed, bricked up or otherwise enclosed, prior to the construction of any building abutting, adjoining or adjacent to such windows.
2 The strip of land which the plaintiff wishes to be servient to its easement is a passageway to the west of the plaintiff's land. Another strip of land being the land in DP619464, adjoins the plaintiff's southern boundary; the plaintiff is taking some other measures to obtain an easement over that strip. The proposed servient land is shown as the Right of Way Site in DP639380, identified by its area 41.15 square metres. DP639380 shows its northern and southern boundaries at 2.44 metres, its eastern boundary at 16.89 metres and western boundary at 16.845 metres. In earlier documents it is referred to as a passageway 8 feet wide. The passageway does not have frontage to any street. At its southern end it abuts the land in DP619464, a (slightly irregular) rectangle about 3.66 metres wide and about 26.17 metres long, which forms a right angle to the passageway and leads east to York Street. Both strips of land are open to access without gates, fences or other obstructions, and as a practical matter (not necessarily as of right) they afford access to York Street from the passageway and all land with frontage to the passageway. The land in DP619464 is in private ownership and (so far as appears from the evidence before me) it is not the subject of any dedication to the public, so any rights to use it would arise from easements.
3 At the hearing on 4 June 2003 the plaintiff presented the part of its application which relates to an easement for light and air and compliance with Development Consent Condition 6. It also needs to comply with Condition 5 to do which it must "demonstrate that there is a legal right to full and free access to and from the fire egress doors across the land adjoining the southern and western boundary". I suppose that this condition may be satisfied by some existing right or further right to be granted by an adjoining proprietor; I have not considered it yet and that part of the application may be brought back to me again.
4 The person whose interests are most affected by the plaintiff's application, whom one would expect to find as the first defendant in such an application, is the owner of freehold title to the passageway. However no person can be identified by searches in the General Register of Deeds or elsewhere who appears to have a documentary title to the passageway, and there is no person who in the present age is behaving as its owner by exercising or purporting to exercise acts of ownership. So far as evidence shows the last purported act of ownership was a grant of a right of way in 1839. Some lanes and passageways in the City passed into the ownership of the City Council under the 19th century legislation which I considered in Sydney City Council v Griffin Corporation [2003] NSWSC 26, but to establish that land vested in the City Council in that way it would be necessary to establish events which brought about a deemed dedication before 1 August 1879. The City Council has not in these proceedings made a claim to be the owner of the passageway, and such a claim would have to pass the difficulty of establishing public usage of the passageway at a remote time and the difficulty of private ownership of the strip connecting the passageway to York Street. I leave the possibility that the passageway is vested in the City Council unexamined. It should be assumed for present purposes that it is not. The City Council is the first defendant and the remaining defendants are the owners of land with frontage to the passageway to the north and the west, and one other owner of nearby land. No defendant opposed the plaintiff's application or claimed ownership of the passageway. The plaintiff's application then is not contentious but still requires to be examined carefully.
5 The first and the last registered document which purports to convey freehold title to the passageway is a grant by the Crown to Hugh Macdonald on 20 May 1819 of Allotment 2 of Section 52 of the Town of Sydney registered Serial 6 page 56. Allotment 2 is much larger than the passageway, which appears to be the residue after alienations of most of Allotment 2. Hugh Macdonald was Quarter Master of the 46th Regiment and made his last will on 8 September 1819; he gave devised and bequeathed all his real and personal estate to trustees who were to convert those assets into money and divide the proceeds in equal shares between his wife Mary Ann Macdonald and his four children; Stephen, Elizabeth, Macquarie and Campbell Leverstone. The will directed that the trustees "do not dispose of any of my houses unless they can obtain fair and advantageous prices for the same." The trustees named in the will were two army officers: they did not take out probate. His widow Mary Ann Macdonald obtained Letters of Administration with that will annexed from the (first) Supreme Court of Civil Judicature on 9 September 1820. By Lease and Release dated 13 and 14 January 1840 registered Book T No.153 members of the Macdonald family conveyed to Moses Joseph a parcel of land with frontage to Clarence Street which appears with fair certainty to have been part of Allotment 2 granted to Hugh Macdonald. Together with the land conveyed they also granted a right of carriageway over land referred to as "a reserved Road", which was "the width of eight feet and the length of fifty six feet, two inches to its junction with another reserved Road leading into York Street twelve feet in width." The conveying parties are recognisably the same members of the Macdonald family who received beneficial entitlements to Hugh Macdonald's assets under his will (with several changes due to marriages). By conveyance dated 30 September 1839 registered Book 8 No.303 the same persons granted a right of way over the passageway 12 feet wide in favour of a parcel of land not presently relevant.
6 Except for this one document creating an easement, searches including a Registrar General's Official Search have not located any registered document dealing with title to the passageway after the Grant. It is not possible to establish rigorously that there is no such document because of the nature of the register which is indexed to names of parties to documents. Macdonald, in various spellings, was a very common name in 19th Century Sydney as it still is. There are untraceably numerous possibilities about the names of persons who may have conveyed interests in the land, whether the five members of the Macdonald family referred to by name in the will or executors, administrators or other successors in title of any of them. Those five members of the Macdonald family (with the husband of one of them) purportedly dealt with title to the land when they granted the easement. Their interests under the will were equitable interests; under the law as it was in 1820, the legal estate in Hugh Macdonald's land passed to the trustees to whom it was devised in his will whether or not they took out probate; army officers may have soon left New South Wales; they may have done nothing in the estate, but they were entitled to deal with land devised to them even if they did not administer personal assets. The interests of Mary Ann Macdonald and her children were equitable interests and they could not convey the legal estate. Registration of deeds was not essential for validity in the absence of some competing dealing. Interests in land may have been conveyed by sheriffs under executions, or by bankruptcy receivers or like officers; the possibilities are endless. Under the law of that time husbands could, in some circumstances, effectually convey real property vested in their wives. All that can be said is that searches which appear to me to be reasonably complete show no registered dealings. I find that no owner of the passageway can be identified and I will deal with the application on that basis.
7 The issues arising upon the application appear from the terms of s 88K. The first is whether the easement is reasonably necessary for the use of, or for the effective development of the benefited land: subs 88K(1). The plaintiff cannot register its Strata Plan unless it complies with Condition 6, and unless it does so it cannot develop its building in an economically effective way and have available strata titles to many lots in the building; valuation evidence makes plain and it is in any event obvious that the value of the land will be greatly enhanced by carrying out the development. The alternative offered by the terms of Condition 6 is to give a covenant under which transferees of Strata titles may become obliged to brick up windows. Bricking up the windows would obviously be severely adverse for effective use of the strata lots and valuation evidence shows that placing the covenant on the title to the strata lots would be severely adverse to their value. This test has been satisfied.
8 Subsection 88K(1) also confers a discretion on the court. I see no discretionary element which calls for consideration and is adverse to making the order except for the impact on the unknown owner of the passageway of imposing a further easement. According to the registered documents there has been no sign of activity from an owner for 163 years and the passageway has been left open, alternate development of the passageway is not reasonably practicable as the evidence of the valuer shows, and the additional burden of imposing easements for light and air would be slight indeed. In my view in the exercise of discretion I should make the order sought.
9 Subsection 88K(2)(a) addresses the public interest. To my observation the only public interest involved is the public interest in maximising the utility of resources including privately owned resources, which strongly favours a decision which facilitates the plaintiff's proposed development without any strongly countervailing disadvantage to anyone. Creation of the easement for light and air would have no discernable adverse impact on the public interest.
10 Under subs 88K(2)(b) the Court must be satisfied that the person interested in the burdened land can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement. This provision contemplates that the Court may determine that compensation is not payable because of the special circumstances of a particular case. Valuation evidence shows that the value of the passageway will not be adversely affected by the imposition of an additional easement such as is now sought. In all practicality there is no prospect that any person may come forward and establish an entitlement to own the passageway and to be considered for the receipt of compensation. It is mere theory to suppose, after many generations of inactivity, that there may be any persons who could do so; and if there are, their inactivity disentitles them from any consideration. In my view compensation is not payable because of the special circumstances of this case.
11 It is also for the plaintiff to show under subs 2(c) that all reasonable attempts have been made by the plaintiff to obtain the easement, or an easement having the same effect and have been unsuccessful. As there is no person other than the Court who could grant the easement the plaintiff has readily satisfied this requirement.
12 For these reasons I have decided in principle, as I announced on 6 June 2003, to grant the easement for light and air claimed, but it remains for me to give careful attention to the terms of the order, as is directed by subs (3). The plaintiff's counsel and solicitor should attend me in Private Chambers for the purpose of settling the terms of the order. Subject to further consideration, I would prefer the order to refer to the existing Deposited Plan 639380 when identifying the passageway.