Citation : CITY OF BELMONT -v- SALDANHA [2016] WASC 37

Property law - Appeal against grant of declaratory and injunctive relief to enforce easement on appellants' land in favour of the first respondent - Appeal against refusal of appellants' application under s 129C of the Transfer of Land Act 1893 (WA) seeking to have easement removed from certificate of title - Whether deed granting easement valid and enforceable - Whether first respondent had power to acquire the easement - Whether s 33A of the Public Works Act 1902 (WA) and s 195 of the Land Administration Act 1997 (WA) limited to easements acquired for the purpose of public works - Effect of indefeasibility provisions of Transfer of Land Act - Whether trial judge erred in failing to make declaration or order under s 129C of the Transfer of Land Act - Scope and operation of s 129C of the Transfer of Land Act - Whether trial judge erred in ordering the appellants to pay the first respondent's costs

Land Administration Act 1997 (WA), s 195

Public Works Act 1902 (WA), s 33A

Town Planning and Development Act 1928 (WA), s 13

Transfer of Land Act 1893 (WA), s 129C

First Respondent : Mr S M Davies SC and with him Mr P Wittkuhn

Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216

Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228

Attorney General (NSW) v Peters [1924] HCA 31; (1924) 34 CLR 146

Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604

Black v Garnock [2007] HCA31; [2007] HCA 31; (2007) 230 CLR 438

Boyd v Mayor of Wellington [1924] NZGazLawRp 58; [1924] NZLR 1174

Chiu v Healey [2003] NSWSC 857; (2003) 11 BPR 21,241

City of Belmont v Saldanha [2016] WASC 37

City of Canada Bay Council v F&D Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424

Commissioner of Main Roads v North Shore Gas Company Ltd [1967] HCA 41; (1967) 120 CLR 118

Davidson v Elkington [2011] WASC 29

Farah Construction Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (1007) 230 CLR 89

Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281

Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743

Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 229 CLR 545

Heaton v Loblay (1960) SR (NSW) 332

In re Truman [1956] 1 QB 261

Kitching v Phillips [2011] WASCA 19

Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537

Lolakis v Konitsas [2002] NSWSC 889

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409

Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Oldfield v Gold Coast City Council [2009] QCA 124; [2010] 1 Qd R 158

Owners of Corinne Court v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1

Owners of East Fremantle Shopping Centre v Action Supermarkets Pty Ltd [2008] WASCA 180; (2008) 37 WAR 498

Palais Parking Station v Shea (1980) 24 SASR 425

Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35

Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 (S)

Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633

Pearson v Richardson (2012) 21 Tas R 461

Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605

Prowse v Johnstone [2012] VSC 4

Re Ghey & Galton's Application [1957] 2 QB 650

Re Henderson's Conveyance [1940] Ch 835

Re Stani (Unreported, Full Court of the Supreme Court of Victoria, No M10850, 7 December 1976)

Redgrave v Hurd (1881) 20 Ch D 1

Shean Pty Ltd v Owners of Corinne Court [2001] WASCA 311; (2001) 25 WAR 65

Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163

Stanhill Pty Ltd v Jackson [2005] VSC 169; (2005) 12 VR 224

Stannard v Issa [1987] AC 175

Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315

The State of Western Australia v Cunningham (No 2) [2017] WASCA 197

Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87

Thorne v Kennedy [2017] HCA 49; (2017) 91 ALJR 1260

Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274

TZ Developments Pty Ltd v Rickman Pty Ltd (1993) 7 BPR 97,582

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

Vrakas v Registrar of Titles [2008] VSC 281

Water Board v Moustakas (1988) 180 CLR 491

Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45; (2007) 233 CLR 528

1 On 9 July 1993, the City of Belmont registered a Deed under the provisions of the Transfer of Land Act 1893 (WA). The Deed was executed by Mr James Callaghan, and purported to grant an Easement over land at 337 Sydenham Street in Belmont (No 337),[1] of which he was registered proprietor. The Easement conferred by the Deed was a right of carriageway granted to the City, its officers, employees, agents and other persons from time to time authorised by the City, over a specified portion of No 337. As the Easement did not confer a benefit on a dominant tenement, it was not an easement of the kind recognised by the common law.[2] Instead, it constituted what is commonly referred to as an 'easement in gross', which may be created pursuant to statute.[3]

2 The execution of the Deed followed the purported imposition of a planning condition to an approval for Mr Callaghan to undertake a triplex development on No 337, under the City of Belmont Town Planning Scheme No 11 (TPS 11). The Deed was incorporated into the certificate of title for No 337 by a notation made on the certificate. The Easement was subsequently used by persons authorised by the City as the only means of access to dwellings on rear strata lots on a neighbouring property at 339 Sydenham Street (No 339), which were developed in 1995 - 1996.

3 The appellants became the registered proprietors of No 337 on 8 August 2014. On 28 August 2014, the appellants notified the City of their intention to withdraw the Easement. This resulted in the City commencing the primary proceedings seeking declaratory and injunctive relief to enforce the Easement. The City also made an application, under s 129C of the Transfer of Land Act, seeking a modification of the Easement to remove an inconsistency between measurements and angles shown in a plan annexed to the Deed. The appellants counterclaimed, making their own application under s 129C seeking, in effect, to have the Easement removed from the certificate of title to No 337.

4 The trial judge rejected the appellants' counterclaim, and granted the relief sought by the City.[4] The appellants now appeal against the trial judge's decision. For the following reasons, that appeal must be dismissed. Broadly speaking, that is because the City's registered interest in the Easement arising from its notation on the certificate of title for No 337 is indefeasible.

5 Before dealing with the circumstances giving rise to the grant of the Easement, the following provisions of TPS 11 and policies made under that scheme, in force at the time of the grant of planning consent for development on No 337, are noted.[5]

6 The structure of TPS 11 reflects the general structure commonly adopted by local planning schemes in Western Australia. Clause 1.6 identified the Scheme objectives in the following terms:

The intent of this Scheme is to direct and control the development of the Scheme Area (hereinafter referred to as 'the District') in such a way as shall promote and safeguard the health, safety and convenience and economic and general welfare of its inhabitants and the amenities of every part of the District.

7 Part II of TPS 11 provided for local reserves, being lands reserved under TPS 11 for 'Local Authority purposes or for the purposes shown on the Scheme Map'. Clause 2.3 required the Council to have regard to the ultimate purpose intended for the reserve where an application for planning consent is made with respect to land in a local reserve. Clause 2.4 provided for a claim for compensation where planning consent for the development of a local reserve is refused or granted subject to unacceptable conditions. Under cl 2.4.3, the Council may elect to purchase reserved land in lieu of paying compensation.

8 Part III of TPS 11 established zones and the permitted and permissible uses of zoned land. Part IV made provision preserving non-conforming uses.

9 Part V dealt with development requirements. Clause 5.1.1 provided that, subject to specified exceptions, a person shall not commence or carry out development of any land zoned or reserved under TPS 11 without first having applied for and obtained the planning consent of the Council under the Scheme. None of the exceptions to that requirement were applicable to the development which occurred on No 337 and No 339.

10 Part V of TPS 11 also made specific provision in relation to various zones. The relevant land in this case is located in the 'Residential A' zone. Under cl 5.4.1.1 of TPS 11:[6]

The purpose and intent of the 'Residential A' Zone is to encourage a mix of single housing and medium density housing to encourage families to the district and increase the population.

11 Under cl 5.16.1, the Council may, in order to achieve the objectives of the Scheme, make planning policies relating to any part of the Scheme Area for the purpose of controlling development. By cl 5.16.2:

A planning policy shall not bind the Council in respect of any application for planning consent but Council shall take into account the provision of the policy and the objectives which the policy was designed to achieve before making its decision.

12 Part VI of TPS 11 dealt with planning consent. Clause 6.1 provided for the form of an application for planning consent, while cl 6.2 dealt with the advertising of applications. Under cl 6.3.2:

The Council having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is reserved, zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit.

13 Part VII of TPS 11 dealt with administration. Clause 7.1(i) and cl 7.1(ii) provided:

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

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

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

14 Policy Statement No 7 was adopted by the Council, as a planning policy under cl 5.16.1, on 25 November 1991 (Policy 7). Policy 7 applied to land zoned 'Residential A' under TPS 11.

An Outline Development Plan for each residential superblock shall be adopted by Council prior to the approval of any development exceeding a density coding of R12.5.

For this purpose, a 'superblock' was any group of lots generally bounded by streets. An Outline Development Plan was defined to mean 'an indicative plan of development which details' certain matters.

16 Clause 3 of Policy 7 provided for the Council to determine whether public consultation was necessary in the preparation of an Outline Development Plan for a superblock. Clause 4 required that an Outline Development Plan demonstrate that consideration was given to a number of specified matters, one of which was:

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

17 The following facts were found by the trial judge by reference to contemporaneous documents tendered in evidence before him.[7] There was little other material evidence as to the circumstances up to the grant of the Easement, and none from Mr Callaghan and those advising him. The primary facts established by the evidence were not in contention, although the inferences to be drawn from those facts were in contention at first instance and on appeal. At some points below, we have referred to details of the primary documents which were not recited by the trial judge.

18 No 337 was formerly owned by James Callaghan, who lived in Collie. Mr Callaghan became the registered proprietor of an estate in fee simple in that land in 1962.

19 No 337 was 1446 m2 in area and No 339 was 1191 m2 in area. Prior to the grant of the Easement, a single dwelling house was constructed on each lot.[8]

20 In 1987, at a point when TPS 11 was only proposed, Mr Callaghan wrote to the City inquiring as to the number of units which could be placed on No 337 after its proposed rezoning.[9] In May 1988,[10] Mr Deague, the City Planner, responded providing some general advice, including that the proposed scheme called for consideration of the development of the street block[11] and that:

the whole street block needs to be assessed to determine which lots could be developed for medium density development. This may or may not preclude [No 337].

21 In October 1991, Mr Callaghan applied for approval to commence a triplex development on No 337.[12] The application was submitted by Mr Callaghan's builders, Grouplex. By letter dated 4 December 1991, the City advised Mr Callaghan that the proposal could not be considered without an Outline Development Plan.[13] The letter stated that it enclosed a copy of the Council's Statements of Planning Policy. A similar letter was provided to Grouplex. The City's letter indicated:

Council has limited financial resources which it can expend on the preparation of outline development plans. Until priorities are determined and consultants appointed, no further action is possible. If there are sufficient landowners interested in pursuing redevelopment within a particular superblock Council would not object to them funding the preparation of the outline development plan.

22 On 2 January 1992, Mr Callaghan wrote to the City, indicating that he doubted that any of the present landowners in the area would be interested in funding an Outline Development Plan. Mr Callaghan appealed to the City to treat his application for a single Outline Development Plan 'as a single special case with utmost urgency'. After referring to a moratorium on development, Mr Callaghan said:[14]

I would like to know my position as soon as possible as my health is not the best, and I need accommodation in the City.

23 On 3 February 1992, the City's Planning and Development Committee recommended that an outline development plan for the superblock bounded by Sydenham Street, Daly Street, Alexander Road and Williamson Avenue be prepared by planning staff for presentation to the next committee meeting or a special meeting. That superblock includes No 337 and No 339. On 3 March 1992, the Planning and Development Committee resolved to recommend to Council that Outline Development Concept D52 be approved, and that Mr Callaghan be advised of changes required to his application for approval. Council adopted the latter recommendations at its meeting of 9 March 1992.[15]

24 Outline Development Concept D52 identified No 337 and No 339 as having development potential.[16] In setting out preferred residential development options the plan shows, as one option, the creation of a right of carriageway within No 337, providing access to the rear of No 339.

25 On 12 March 1992, the City advised Mr Callaghan that an Outline Development Concept for the superblock had been finalised and adopted, and his builders (Grouplex) would be advised of Council's preferred option.[17]

26 An amended planning application was submitted by Grouplex. (The actual application was not in evidence, but only the covering note.[18])

27 On 28 April 1992, planning approval was given for 3 x 3 bedroom grouped dwellings, subject to conditions which were to be met in the course of carrying out the development. The conditions included:[19]

1. An easement in gross shall be provided free of cost to Council in accordance with the approved plan and Council's requirements, to facilitate the orderly movement of vehicular traffic associated with the subject land. The easement documents shall be prepared by Council's Solicitors at the developer's cost.
2. The easement in gross shall be surfaced, kerbed, drained and maintained at the developers cost to a standard satisfactory to Council.

We shall refer to the first of these conditions as 'Condition 8'.

28 The approved plan attached to this planning consent showed the area of the proposed easement over a paved driveway to the two rear units of the proposed triplex development on No 337 and a garden bed.[20] The easement extended along the boundary of No 337 and No 339. The plan showed an existing fence running along the boundary between No 337 and No 339.

29 The planning approval and the City's covering letter to Mr Callaghan both referred to his right of appeal if he was aggrieved by the decision.

30 On 16 March 1993, Mr Callaghan wrote to the City asking for permission for the removal of certain trees. In support of that request, Mr Callaghan noted that the units had only been constructed some eight weeks ago and the gutters were already filled with debris.[21]

31 On 23 April 1993, the City responded to Mr Callaghan's request, giving him permission to remove one tree.[22] That letter also noted that no attempt had been made to comply with Condition 8. The letter requested that Mr Callaghan contact the Council's solicitors, McLeod & Co, 'to start the necessary proceedings'. The letter also advised Mr Callaghan that 'strata title and bond monies' would not be released until all conditions of the planning consent were met.

32 The only evidence of subsequent discussions is a letter from McLeod & Co to Mazza McCallum & Robinson dated 1 June 1993. It appears from that letter that Ross McCallum was acting for Mr Callaghan, and that Mr McCallum had spoken to Michele Payne, a partner of McLeod & Co, on 28 May 1993. The author advised that:[23]

subsequent discussions with the City of Belmont have confirmed that the Easement in Gross was required as a condition of development approval. A copy of the Approval to Commence Development is attached. Note condition 8. Your client did not appeal against the condition when he had an opportunity to do so and accordingly it stands.

We are advised by the City that although the building of the development is complete, it has not yet issued the Local Authority Certificate pursuant to s.23 of the Strata Titles Act nor release[d] the bond of $2,000 submitted by Mr. Callaghan to ensure compliance.

On the basis that the Easement will need to be lodged for registration prior to the City giving the s.23 Certificate or releasing the bond, we have enclosed the documents for execution by your client.

33 Mr Callaghan and the City executed the Deed, which was dated 6 July 1993. By the Deed, in consideration of the sum of $1, Mr Callaghan granted to the City:[24]

and its authorized officers, employees, agents and other persons from time to time authorized by the [City] under and by virtue of the provisions of section 33A of the Public Works Act 1902 full and free right, liberty, power and authority from time to time and at all times hereafter to go, pass and repass for all purposes and either with or without vehicles over and along that portion of [No 337] as is delineated and coloured orange on the sketch in the Annexure hereto ('the Easement').

34 The Annexure delineated a strip of land, generally 6 m wide and 40 m long, along the boundary of No 337 with No 339.[25]

35 By cl (d) of the Deed, Mr Callaghan, as grantor, covenanted as follows:[26]

The Grantor will not construct erect or build or suffer to be constructed erected or built any building structure or obstructions whatsoever on [No 337] or any part thereof or use or permit [No 337] to be used in such a way as to obstruct or interfere with the use of the Easement without the consent in writing of the [City] first being obtained.

36 On 9 July 1993, the Deed was registered and the Easement was shown in the second schedule to the certificate of title for No 337 as one of the 'limitations, interests, encumbrances and notifications'.[27]

37 An aerial photograph of the area from January 1995 shows the triplex development on No 337.[28] At that time, a single dwelling was constructed on No 339.

38 No 337 has never been strata titled, remaining a single lot.

39 The trial judge construed the Deed as providing for the City and those authorised by it to 'go or pass for all purposes', rather than only for the purpose of accessing units at the rear of No 337. His Honour held that the rights under the Easement extended to permit the City to authorise the use of a right of way, on conditions, by the occupiers of the adjacent land. The rights granted could be exercised repeatedly and at all times.[29]

40 At a time when they were self-represented in the appeal, the appellants' grounds of appeal asserted that the trial judge erred in his construction of the Deed. Those grounds were abandoned when the appellants became represented by senior counsel. There is no reason to doubt the correctness of the trial judge's construction. This appeal must therefore proceed on the basis that the trial judge's construction of the Deed, and the extent of the Easement, was correct.

41 On 26 May 1995, the City granted to the former proprietor of No 339 planning approval for the construction of a triplex development on No 339.[30] The approved plan for the development depicted two rear units on No 339 which had no road access, and driveways ending at the boundary of No 337 and No 339. A condition of the planning consent was that the applicant 'negotiate with the adjoining strata company to obtain a connection to the existing accessway'.[31] There is no evidence of any access agreement being reached.

42 On 11 March 1996, strata plan 30899 was registered in respect of No 339.[32] The strata plan provided for three strata lots on No 339, without any road access to the two rear strata lots (strata lots 2 and 3). The strata plan showed an area of common property between strata lots 2 and 3 and the boundary of No 337 and No 339.

43 At about this time, three units were developed on No 339. The occupiers of strata lots 2 and 3 have used the paved driveway on No 337 and the common property on No 339 to access their strata lots since that time.

44 The two rear units at No 339 used the Easement for many years without any formal arrangement with the City. After the appellants purchased No 337 and stated their intention to withdraw the Easement, the City formalised the arrangement with the owners and occupiers of lots 2 and 3 on No 339. This was done by letters to the occupiers, first in October 2014, then again in January 2015, and finally on 6 May 2015.

Appellants' purchase of No 337 and proposal to construct fence

45 The appellants purchased No 337 and were registered as proprietors of an estate in fee simple in that land on 8 August 2014. On 28 August 2014, the appellants wrote to the City indicating their intention to withdraw the Easement.

46 Correspondence between the appellants and the City followed, in which the City asserted and the appellants denied the validity of the Easement and its effectiveness to authorise access to strata lots 2 and 3 on No 339. During the course of that correspondence, the appellants indicated their intention to construct a fence on the boundary of No 337 and the common property on No 339, and a gate at the boundary of the Easement and Sydenham Street.[33]

47 In January and May 2015, the City wrote to the owner occupiers of strata lots 2 and 3 at No 339, authorising them to pass over the Easement to obtain access between their units and Sydenham Street.[34]

48 As a result of the correspondence referred to above, the City commenced proceedings in the general division of this court. The City sought declaratory and injunctive relief. The City also sought a modification of the Easement under s 129C of the Transfer of Land Act, to remove an inconsistency between measurements and angles shown in a plan annexed to the Deed. The appellants counterclaimed seeking various relief, and in substance contesting the validity of the Easement on the ground that an easement in gross could only be lawful when it served a public purpose.[35] The appellants also made various allegations as to deceptive, misleading or fraudulent conduct, and in relation to the scope of the rights conferred by the Easement.

49 The trial judge found in favour of the City. The court made a declaration that, on the proper interpretation of the Easement, the appellants are not entitled to erect or cause to be erected any fence, gate or other obstruction on or about those portions of the Easement boundary which abut:

(a) the common property area on Strata Plan 30899 (on No 339); or

50 The trial judge also made an order under s 129C of the Transfer of Land Act modifying the area of the Easement to remove the inconsistency in angles and measurements referred to above. The counterclaim was dismissed, and the appellants were ordered to pay the City's costs other than the City's costs of its application under s 129C of the Transfer of Land Act.

51 In the course of his reasons, the trial judge found that the Easement was lawfully granted. His Honour found the grant of an easement without a dominant tenement to be authorised by s 33A of the Public Works Act 1902 (WA), which provided:

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

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

While s 33A has since been repealed, a similar provision is currently found in s 195(a) of the Land Administration Act 1997 (WA).

52 At trial, it was not contended that the Easement was acquired for the purpose of a 'public work' within the meaning of the Public Works Act. However, the trial judge held in effect that s 33A was not limited by that context.[36] The trial judge also held that, '[i]f it is necessary to determine whether the City could lawfully acquire interests in land, by agreement or otherwise', s 13 of the Town Planning and Development Act 1928 (WA) and cl 7.1 of TPS 11 provided that authority.[37]

53 The appellants appeal against the trial judge's decision on 10 grounds.

54 Grounds 1 and 2 contend that the Deed was invalid and unenforceable.

55 Ground 1 contends that Condition 8, properly construed, was limited to requiring an easement to facilitate the movement of vehicular traffic associated with No 337. The appellants argue that the fact that the scope of the Deed extended beyond the scope of Condition 8 rendered the Deed invalid.

56 Ground 2 contends that, if Condition 8 was not so limited, then the Condition was invalid. This is on the basis that, if Condition 8 required an easement for the benefit of No 339, it was not imposed for a planning purpose, did not reasonably or fairly relate to the proposed development on No 337 and was so unreasonable that no reasonable planning authority could have imposed it. In the event that Condition 8 was invalid, the Deed is said also to be invalid.

57 Grounds 3 and 6 are consequential upon grounds 1 and 2, and depend on the success of one of those grounds. In effect, those grounds contend that, if grounds 1 and 2 succeed, then the City had no lawful entitlement to invoke s 33A of the Public Works Act or s 13 of the Town Planning and Development Act.

58 Grounds 4, 5 and 7 challenge the application of s 33A of the Public Works Act and s 13 of the Town Planning and Development Act to authorise the City to acquire the Easement (even assuming the validity of Condition 8 and Deed).

59 At the hearing of the appeal, the appellants were given leave to amend their grounds of appeal to add the following ground:[38]

7A The trial judge erred in in law in relying upon cl 7 of TPS 11 as a power to acquire an easement in gross because:

(a) clause 7 of TPS 11 does not authorise the acquisition or creation of an easement in gross, not being for a public work; and

(b) clause 7 allows consensual takings of land for the purposes of implementing the Scheme whereas the Easement was not for such a purpose.

60 The court granted the appellants leave to make this amendment, notwithstanding the lateness of the application, in view of the fact that the issue had been identified by the court at a previous hearing, and subsequently addressed by the City in its written submissions, with the result that the City was not prejudiced by the late amendment. We also took into account the fact that the grant of leave would not delay the hearing of the appeal. In those circumstances, it was not in the interests of justice to visit on the appellants the consequences of what counsel accepted was his oversight.

61 At the same time, the court refused leave to amend the grounds to introduce an additional sub-paragraph (c) to ground 7A. The effect of that proposed sub-paragraph was to raise an issue as to whether the reference to an 'agreement' in cl 7(i) of TPS 11 was to an arm's length agreement, rather than a deed pursuant to a condition of a development approval.[39] That was not a matter which had previously been raised, and the City was not given a proper opportunity to understand and respond to the ground. In any event, there was no merit to the submission that the reference did not include an agreement subjectively understood to implement a planning condition. For these reasons, having regard to the principles governing the exercise of the court's discretion to allow an amendment to grounds of appeal,[40] it was not in the interests of justice to allow that paragraph to be added.

62 Ground 8 contends that, if grounds 1 - 7 succeed, the trial judge erred in failing to make a declaration under s 129C that No 337 is not affected by the Easement, that the Easement is not enforceable, and that the Easement ought to be removed from the Register.

the learned trial judge erred in law by failing to apply s 129C(1) ... to make an order declaring the continued existence of the Easement would, unless modified, impede the reasonable user of [No 337] without securing practical benefits to other persons, and failing to order reduction of the Easement to 3 metres in width.

64 Ground 10 only arises if the other grounds fail. Ground 10 contends that the trial judge 'erred in law by ordering the [appellants] to pay the City's costs of the hearing, when his Honour should have applied s 129C(8) [of the] Transfer of Land Act and ordered that each party bear its own costs'.

65 The City seeks to contend that the trial judge's judgment ought to be upheld on the following additional and alternative bases:

1. The easement in gross did serve a public purpose namely enabling orderly and rational urban infill by facilitating the subdivision of No 339 and No 337 without the duplication of driveways and crossovers.
2. Alternatively, the decision ought to be upheld on the ground that the interests of the [City] under the easement were indefeasible by reason of sections 52, 63, 63A, 64 and 68(1) of the Transfer of Land Act 1893.
3. The Court should in its discretion refuse relief to the appellants on the grounds that:

1. The condition challenged by the appellants was imposed in 1992; 2. It was included in a planning consent issued not issued to the appellants but to a predecessor in title to the appellants;

1. The easement was entered into and registered in 1993;

1. The appellants were not a party to the easement; 2. Rights of merits review and judicial review available to the recipient of the condition, and arguably to the grantor of the easement, were not exercised; 3. The development approved by the planning consent which contains the challenged condition, has been fully implemented by a predecessor in title to the appellant; 4. The interests of third parties have intervened, in that a development at No. 339 has been established since approximately 1996 which to the knowledge and assent of the appellants' predecessor-in-title relied solely on the easement as the means of access for units 2 and 3 of No. 339, and this has continuously remained the case; 5. The dependence of units 2 and 3 of No 339 upon the easement was observably obvious to persons in the position of the appellants when they acquired No. 337; and 6. The appellants took transfer of No. 337 acknowledging the easement as a prior encumbrance.

66 By an application in the appeal filed on 10 November 2017, the City sought leave to amend the Notice of Contention to add the above underlined portions. Leave should be granted to amend ground 2 to add references to additional provisions of the Transfer of Land Act, to which the court would need to have regard in any event. That aspect of the amendment does not raise any new substantive matter, or prejudice the appellants. Given the manner in which other issues have been determined, it is unnecessary to consider the discretionary issue raised by proposed ground 3 of the notice of contention, or whether leave should be granted to add that ground.

67 An appropriate point to commence the analysis in this case is to consider the effect of the registration of the Deed under the Transfer of Land Act. The reason that registration is the appropriate starting point, rather than any alleged prior invalidity of the registered instrument or the reasons for that invalidity, arises from the nature of the 'Torrens system' established by the Transfer of Land Act. It is the registration of the Deed which creates and constitutes the City's legal title as registered proprietor of the Easement, which title is indefeasible subject to limited exceptions. As Barwick CJ observed in Breskvar v Wall,[41] in relation to Queensland Torrens legislation in similar terms:

The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void.

Provisions of the Transfer of Land Act

68 For the most part,[42] the Transfer of Land Act treats traditional easements and easements in gross in the same way. The following are the central provisions of the Transfer of Land Act which provide for registration of an instrument creating an easement, incorporated into the certificate of title of the servient tenement, to give the holder of the easement an indefeasible title to the easement, subject to limited exceptions.

69 Section 48(1)(a) requires the Registrar to cause to be maintained for the purposes of the Act a register comprising all certificates of title. The Act provides for a system of bringing land under the Act, culminating in the registration of a certificate of title for the land. By section 48A(2), the Registrar shall endorse on each certificate of title the particulars of all dealings and matters affecting the land that is the subject of the certificate where the particulars are required by the Act to be registered or entered in the Register.

70 Section 54(2) enables a person to lodge with the Registrar a 'memorandum' in an approved form. A 'memorandum' is defined by s 54(1) to mean a document containing terms, conditions, covenants or other provisions purporting to affect any land under the operation of the Act (emphasis added). By s 54(3)(a), the Registrar may file the memorandum if the content is approved by the Registrar. The Registrar is to allocate a unique reference number to each memorandum so filed. By s 54(4), a provision of a particular memorandum filed under s 54 may be incorporated into a certificate of title, with or without amendment, by notation to that effect on the certificate of title. By s 54(5), such a provision is deemed to be set out in its entirety in the certificate of title. By s 52(2), an instrument purporting to affect any land for which a certificate of title has been registered is registered when:

a memorandum referred to in section 56 in relation to the original instrument has been entered in the Register on the certificate.

71 By s 52(4), a person named in a certificate of title or registered instrument:

as the proprietor or as having an estate or interest or power in relation to the land that is the subject of the certificate or the instrument shall be deemed to be the registered proprietor of the land or to have the estate or interest or power in relation to the land, as the case may be.

72 Under s 58 of the Act, no 'instrument until registered in manner herein provided shall be effectual to pass any ... interest in any land under the operation of this Act ...; but upon such registration the ... land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument...'.

73 Under s 63 of the Act, every registered certificate of title 'shall be received in all courts of law as evidence of the particulars therein set forth or incorporated and of the entry thereof in the Register' (emphasis added). Under s 63, a registered certificate of title is also:

conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in ... the land therein described is seised or possessed of such estate or interest ...

74 Under s 63A(1) of the Act, any certificate of title 'may contain a statement therein or entry thereon to the effect that the land therein described has appurtenant thereto any easement'. The statement shall contain one of the descriptors of the easement specified in s 63A(2) of the Act.

75 By s 64 of the Act, whenever 'any certificate of title ... shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified such statement shall be received in all courts of law and equity as conclusive evidence that' the person is so entitled.

76 Section 65A requires that 'a memorandum of an easement affecting land under the operation of this Act that has been created by a ... instrument shall be entered on the certificate of title for each dominant and servient tenement'. There are provisions in the Act that clearly contemplate that easements in gross may be notified in a certificate of title; see, for example, s 129C(9) and the Tenth Schedule, referred to in s 65(3). The requirements of s 65A must be read accordingly. In the case of an easement in gross, s 65A should be read as requiring only that the instrument be entered on the certificate of title for the servient tenement.

77 By s 66A, a 'separate certificate of title for an easement shall not be created'.

78 Section 68(1) relevantly provides, subject to presently immaterial exceptions, that 'the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land; but absolutely free from all other encumbrances'.

79 Section 4 of the Transfer of Land Act defines the term 'proprietor' in a way which includes the owner of freehold land whose name appears or is entered as the proprietor thereof in the Register. It is unnecessary to decide in this case whether the City, as a public authority with the benefit of an easement in gross, is a 'proprietor' for the purposes of the Transfer of Land Act.[43]

80 No 337 was land under the provisions of the Transfer of Land Act for which a certificate of title was registered. As a document containing terms, conditions, covenants or other provisions purporting to affect No 337, the Deed was a memorandum for the purposes of s 54 of that Act. The Deed was filed and allocated a unique reference number (F244538) on 9 July 1993, and incorporated into the certificate of title for No 337 by notation on that date. The provisions of the Deed granting the Easement were deemed to be set out in their entirety in the certificate of title for No 337 from that date (s 54(5)). At that point the Deed was registered (s 52(2)).

81 The City, as the person named in the certificate of title for No 337 and the registered Deed deemed to be set out in that certificate as having an interest or power (an easement) in relation to No 337, was deemed to have the interest or power in relation to the land (s 52(4)). Upon registration of the Deed, No 337 became liable in manner and subject to the covenants and conditions set forth and specified in the Deed (s 58). The certificate of title for No 337 was evidence of the particulars set forth and incorporated from the Deed, and is conclusive evidence that the City, as the person named in that certificate of title as having an easement over No 337, is so entitled (s 64). As proprietors of No 337, the appellants hold that land subject to the Easement notified on the certificate of title for No 337 (s 68).

82 By the means described above, the registration of the Deed on 9 July 1993 created the City's legal title to the Easement. Subject to limited exceptions, that registration gave to the City an immediately indefeasible title to the Easement, irrespective of the validity of the Deed prior to its registration.

83 The concept of immediate indefeasibility is illustrated by the decision of the New Zealand Court of Appeal in Boyd v Mayor of Wellington.[44] In that case the Governor had gazetted and registered a proclamation under public works legislation acquiring land for the purposes of a tramway, and vesting it in the City of Wellington. The City of Wellington was registered as proprietor of the land under New Zealand's Torrens legislation. The proclamation was void due to a failure to comply with statutory preconditions to the valid exercise of the power to acquire land for a public work. Action by the previous owners to recover their land from the City of Wellington failed on the basis that the registration had conferred on the City of Wellington an immediately indefeasible title to the land and the previous owners were not entitled to have the register rectified.

84 In Frazer v Walker,[45] the Privy Council held that the approach adopted in Boyd was correct, and that registration of a void instrument under Torrens legislation is effective to vest and divest title, and to protect the registered proprietor against adverse claims. The correctness of the approach taken in Boyd was also affirmed in Breskvar.[46]

85 The operation of the indefeasibility provisions in relation to an easement was addressed by Hasluck J in Owners of Corinne Court v Shean Pty Ltd.[47] An issue which arose in that case was whether the owners of a dominant tenement had an indefeasible title to an easement registered on the certificate of title for the servient tenement. The owner of the servient tenement contended that the easement instrument was executed by persons who did not have authority to do so on behalf of the body corporate under the Strata Titles Act 1985 (WA). Hasluck J held that the indefeasibility provisions of the Transfer of Land Act applied to the easement even if the alleged defects in its execution were established.[48] While a different aspect of the decision in that case[49] was subject to a successful appeal, nothing said on appeal called into question this aspect of Hasluck J's decision.[50] Corinne Court was distinguished by this court in Owners of East Fremantle Shopping Centre v Action Supermarkets Pty Ltd,[51] but not in terms which doubted the correctness of the aspect of Hasluck J's decision discussed above. In our view, that aspect of the approach taken by Hasluck J was correct.

86 This approach to the effect of the registration of easements is consistent with that taken by the High Court, in relation to Tasmanian Torrens legislation, in Parramore v Duggan.[52] In that case, an easement was endorsed on the certificate of title for the dominant tenement but was not endorsed on the certificate of title for the servient tenement. The owner of the dominant tenement was not able to enforce the easement against the owner of the servient tenement in those circumstances. As Brennan J observed:[53]

It is erroneous to regard indefeasibility as relating to an interest which merely confers rights in or over the land of another registered proprietor whose title is indefeasible. A registered proprietor of a dominant tenement has an indefeasible title to the land to which the easement is appurtenant but the easement is not indefeasible. Similarly, where the servient tenement is land to which a registered proprietor has title under the Act, that title is indefeasible. Unless the easement is registered on the certificate of that title, or unless the easement falls within one of the exceptions contained in s 40(3), the unencumbered title of the registered proprietor of the servient tenement is not subject to the easement: see s 40(1). In other words, the registered proprietor of land to which an easement is appurtenant has an indefeasible title to that land but not to the easement, so that the easement cannot be enforced unless the certificate of title of the registered proprietor of the servient tenement states that that title is subject to the easement or unless the easement falls within s 40(3)(e) of the Act. (emphasis added)

87 The emphasised words in this passage indicate that where an easement is registered on the certificate of title for the servient tenement, the title of the registered proprietor of the servient tenement will be subject to the easement. Moreover, the logic of the court's decision compels this conclusion. The court held that endorsement of the easement on the dominant tenement did not give the proprietor of the dominant tenement an indefeasible title to the easement. Thus, it is the registration of the easement on the title to the servient land that gives indefeasible title to the party with the benefit of the easement.[54]

88 This conclusion is also consistent with and supported by analysis from the perspective of the registered proprietor of the servient tenement, viewed within the framework of the fundamental nature of Torrens title. The appellants' registered title to No 337 is expressed to be subject to the Easement. The Torrens system is one of title by registration, not registration of title.[55] What a registered proprietor has, and all he or she has, is the title which the certificate of title describes and certifies. That title is, as expressly provided by s 68, 'subject to such encumbrances as may be notified on the registered certificate of title'. If an easement, to which the servient tenement's registered title is expressed to be subject, were not enforceable by the party with the benefit of the easement, the registered proprietor of the servient tenement would, in effect, have a title greater than the title described in the register and certificate of title.

89 As noted above, the immediate indefeasibility of title provided for by Torrens legislation such as the Act is subject to a number of exceptions. Statutory exceptions are provided for, such as in the case of fraud. In addition, the provisions of the Transfer of Land Act do not deny what the Privy Council in Frazer referred to as:[56]

the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a court acting in personam may grant.

90 As Mason CJ and Dawson J recognised in Bahr v Nicolay [No 2],[57] the recognition and enforcement of an equity arising from conduct of the registered proprietor before registration must involve no conflict with s 68 and s 134 of the Transfer of Land Act. Consistently with that approach, intermediate appellate courts have held that mere retention by a government authority of land compulsorily acquired by it under a void instrument which was then registered did not give rise to a personal equity which would defeat the government authority's registered title.[58] In Palais Parking,[59] King CJ observed that the concept of immediate indefeasibility established by Frazer and Breskvar:

would be virtually meaningless if the courts were to regard mere retention of the land after it becomes known that the instrument is void as unconscionable so as to give rise to an equitable claim in personam on the part of the previous registered owner to have the land retransferred.

91 The prospect of an in personam claim by the former owner of invalidly taken land was considered in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission.[60] In that case, land zoned under a regional planning scheme was purportedly taken pursuant to a taking order. The court noted that the registration of that taking order was not a process for which the Transfer of Land Act provided. Rather, the registration and the extinguishing effect of the taking order were provided for by s 179 of the Land Administration Act.[61] The invalidity of the taking order meant that it could not operate under s 179(b) of that Act to extinguish the former owner's interests in the land, and a direction in the taking order to cancel the relevant certificates of title was erroneous.[62] The plurality said that:[63]

This would appear to give rise to a claim in personam, a personal equity in each of the appellants of the kind referred to in Frazer v Walker, to rectify the Register. (citation omitted)

The plurality did not specify the nature and source of this personal equity, presumably on the basis that all questions of the indefeasibility of the Commission's title had been expressly reserved, with the consent of the parties, to be dealt with by the primary judge in that case on a further hearing of the application.[64]

92 By contrast, in the present case the registration of the Deed was provided for by the Transfer of Land Act. Section 54 of that Act provided for the registration of a document containing terms, conditions, covenants or other provisions purporting to affect any land under the operation of the Act. Regardless of its validity, the Deed was a document of that character. The immediate indefeasibility provided for by the provisions of the Transfer of Land Act noted above took effect on that registration.

93 In the present case, the only basis on which the appellants contend the City's title to the registered Easement can be impugned is s 129C of the Transfer of Land Act.[65] It is convenient to turn to consider the operation of that provision.

Section 129C of the Transfer of Land Act

94 Section 129C of the Transfer of Land Act provides for certain powers of the Supreme Court in relation to easements and restrictive covenants to which land under the Act is subject. The focus of the discussion below is on those aspects of s 129C which concern easements. Section 129C applies to all easements whenever created, and whether or not created under Part IVA (which deals with the creation of easements by notation on subdivisional plans).[66]

Section 129C(1)

95 Section 129C(1) provides for an application to be made to the court by any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement. On such an application, the court is empowered to 'by order wholly or partially extinguish, discharge or modify the easement' upon being satisfied of certain matters.

96 Section 129C(1)(a) specifies one set of matters, the court's satisfaction of which will empower the making of such an order. The court must be satisfied of these matters by reason of:

(1) any change in the user of any land to which the easement is annexed; or

(2) changes in the character of the property or the neighbourhood; or

(3) other circumstances of the case which the court or a judge may deem material.

97 The matters of which the court must be satisfied under s 129C(1)(a), by reason of one or more of the above circumstances, are that:

(1) the easement ought to be deemed to have been abandoned or to be obsolete; or

(2) the continued existence of the easement would impede the reasonable user of the land without securing practical benefits to other persons; or

(3) the easement unless modified would so impede such user.

98 Section 129C(1)(b) specifies another set of matters, the court's satisfaction of which will empower the making of an order wholly or partially extinguishing, discharging or modifying the easement. The matters of which the court must be satisfied are:

(1) that the persons of full age and capacity for the time being or from time to time entitled to the easement have agreed to the same being wholly or partially extinguished, discharged or modified; or

(2) by their acts or omissions, those persons may reasonably be considered to have abandoned the easement wholly or in part.

99 Section 129C(1)(c) allows the court to make an order under s 129C(1) when satisfied that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement.

Section 129C(3)

100 Section 129C(3) of the Transfer of Land Act relevantly provides:

The court or a judge may on the application of any person interested make an order declaring:

(a) whether or not in any particular case any land under this Act ... is affected by an easement ... imposed by any instrument ...; or

(aa) what is the nature and extent of the easement and whether the same is enforceable and if so by whom; or

...

(c) whether or not any easement ... ought to be removed as an encumbrance from the Register.

Applications in an action to enforce an easement

101 Section 129C(2) of the Transfer of Land Act relevantly provides:

When any proceedings by suit or otherwise are instituted to enforce an easement ... affecting land under this Act ... then any person against whom the proceedings are instituted may in such proceedings apply to the court or a judge for an order under this section.

Effect of an order under s 129C

102 Section 129C(5) of the Transfer of Land Act provides for the effect of an order under s 129C in the following relevant terms:

An order under this section shall when entered in the Register as hereinafter provided be binding on all persons whether of full age or capacity or not then entitled or thereafter becoming entitled to the easement ... which is thereby extinguished, discharged, modified, or dealt with and whether such persons are parties to the proceedings or have been served with notice or not.

103 Section 129C(7) requires the Registrar, on a prescribed application, to make 'all necessary amendments and entries in the Register for giving effect to such order in respect of all certificates of title specified therein'.

Costs of an application under s 129C

104 Section 129C(8) of the Transfer of Land Act provides:

The costs of and incidental to an application made pursuant to the provisions of this section to the court or a judge shall not be awarded against the defendant or respondent in any event.

Indefeasibility and s 129C(1)

105 Section 129C(1) of the Transfer of Land Act empowers the court to make an order which wholly or partially extinguishes, discharges or modifies an easement. The easement need not be registered, but in light of s 129C(6) and (9), there is no warrant for excluding registered easements from the application of the section. Because it enables the court to make an order extinguishing, discharging or modifying a registered easement, s 129C(1) necessarily operates to qualify the indefeasibility of the title of the holder of an easement registered on the servient tenement. The rights conferred by that registered title are subject to extinguishment or alteration by an order made by the Court under s 129C(1) of the Act. There is authority that, in the exercise of power under provisions equivalent to s 129C(1), the court is entitled to have regard to the conduct of predecessor proprietors of the dominant tenement, not only that of the current proprietor.[67]

106 However, the circumstances in which the court may exercise its power to alter the rights of the holder of a registered easement are limited. The court must be satisfied of the matters set out above, which generally turn on concepts of abandonment, obsolescence and the absence of practical benefits to, or substantial injury to the rights of, other persons. In Smith v Australian Real Estate & Investment Co Ltd,[68] Negus J made the following observations in relation to s 129C (which at that time concerned only restrictive covenants):

Speaking generally, I feel sure Parliament did not, when enacting s 129C, intend the Court to allow what is in effect the expropriation of private property, namely, the right of a landowner to the benefit of a restrictive covenant, without compensation, unless completely satisfied that the benefit is valueless to such owner from a practical standpoint and does not secure him any practical benefit.

107 In Davidson v Elkington,[69] Hall J identified the purpose of s 129C as a whole as being to enable covenants which have no practical utility to the dominant land to be removed so as to clear the title of the servient land.

Indefeasibility and s 129C(3)

108 In contrast to the language of s 129C(1), s 129C(3) refers to the court making an order 'declaring' certain matters. Generally, a declaration is an order which determines and declares the existing rights, duties and obligations of parties bound by the declaration. In the general law, a declaration recognises, rather than alters, existing rights, duties and liabilities. There is nothing in the text or context of s 129C(3) to suggest that the concept of a declaratory order is being used in some different sense in that provision. The absence of any criteria which condition the court's power to make a declaratory order under s 129C(3) tends to confirm that the power is to make an order which recognises, rather than alters, existing rights, duties and liabilities. Further, counsel were unable to point to, and we have been unable to locate, any authority which suggests that the power in s 129C(3) can be employed in a manner which destroys the rights provided for in earlier provisions of the Act.

109 In deciding whether to make a declaration as to the nature, extent and enforceability of an easement, the court is therefore to apply the existing law, including the other provisions of the Transfer of Land Act discussed above, to the facts as found by the court. Section 129C(3)(aa) does not give the court a general discretion to decide whether an easement should exist and should be enforceable. Any declaration made under that section must be consistent with the provisions of the Act conferring an immediately indefeasible title on a person entitled to the benefit of a registered easement.

110 A declaration made under s 129C(3) may relate to an unregistered easement. In such a case, the indefeasibility provisions which protect the title of the person entitled to the benefit of a registered easement have no role to play. The provisions of the Act dealing with indefeasibility of the title held in relation to other registered interests may still be relevant. For example, the registered proprietor of an estate in fee simple in land may acquire a title which is not burdened by the rights created by a prior unregistered instrument.

111 A declaration may also be made as to the existence and enforceability of an easement having regard to the terms of the registered instrument. A registered instrument which at law is incapable of constituting an easement, for example because the rights it confers are not capable of constituting the subject matter of an easement,[70] does not become enforceable as an easement merely because the instrument is registered and its terms incorporated in a certificate of title. The indefeasible title of the holder of a registered instrument is to the rights conferred by the terms of the registered instrument, and if the terms do not in law confer an interest in land mere registration cannot cure the defect.

112 In determining enforceability, the court may need to take account of an in personam claim by the proprietor of the servient tenement against the holder of the registered easement. Such an in personam claim may mean that the holder cannot enforce the easement against the proprietor of the servient tenement. However, any such in personam claim must be of a kind, discussed above, which is not inconsistent with the provisions of the Act conferring an immediately indefeasible title on the holders of registered interests in land under the Act. As discussed, the mere fact that an instrument which is proper on its face was infected by invalidity prior to registration will not give rise to an in personam claim to have the registration set aside by reason of that invalidity.

113 Section 129C(3)(c) allows the making of an order declaring whether or not an easement ought to be removed as an encumbrance from the Register. However, there is no proper basis for reading s 129C(3)(c) as authorising a declaration that a continuing enforceable easement to which a person has a legal entitlement ought to be removed from the Register.

114 For these reasons, we reject the appellants' submissions that '[i]ndefeasibility does not apply in this case because of s 129C'.[71] Section 129C(3) does not trump the indefeasibility created by earlier provisions of the Act; rather, it operates consistently with it.

115 These conclusions are consistent with and reinforced by the recognition in the cases of the pervasive significance of the fundamental provisions providing that:

(1) the Torrens system is one of title by registration, not registration of title; and

(2) a person inspecting the register should be able to rely on it;

in the resolution of a variety of issues concerning the Torrens legislation. These issues include:

(1) the scope of evidence generally admissible on the construction of a registered easement;[72]

(2) the scope of any exception to that general rule;[73]

(3) the operation of statutory provisions concerning vesting orders made by a court upon property the subject of Torrens legislation;[74]

(4) the scope of the in personam exception to indefeasibility, and its interaction with a claim of knowing receipt in a breach of trust case;[75] and

(5) the operation and effect of a writ of execution against Torrens land.[76]

116 Our conclusions as to the indefeasibility of the City's registered interest in the Easement mean that ground 2 of the notice of contention must be upheld, and are a complete answer to grounds 1 - 3, 6, 7 and 7A. However, as explained below, had ground 5 succeeded, indefeasibility would not have been a barrier to the upholding of the appeal.

Grounds 1 - 3 and 6: Invalidity of the Deed resulting from the Condition Appellants' submissions

117 The appellants' submissions as to the scope and validity of Condition 8 involved the following steps:

(1) Condition 8 only required the provision of an easement in gross for the purpose of facilitating the orderly movement of vehicular traffic associated with No 337. Condition 8 did not require the provision of an easement to facilitate the movement of vehicular and pedestrian traffic associated with different land.

(2) By providing for the City and authorised persons to go, pass and repass over the land for all purposes (which included for the purpose of gaining access to units on No 339), the Deed granted rights which extended beyond those required by Condition 8.

(3) Alternatively, if Condition 8 required an easement to facilitate the movement of vehicular and pedestrian traffic associated with No 339, then Condition 8 was invalid because it:

(b) did not reasonably and fairly relate to the proposed development on No 337; and

(c) was so unreasonable that no reasonable planning authority could have imposed it (the Newbury test).[77]

(4) In either event, the Deed is void or voidable, and the Easement should have been removed under s 129C of the Transfer of Land Act by reason of its invalidity.

118 The case which the appellants seek to advance by these grounds was not run at trial, and the appellants should not be permitted to run a new and different case on appeal.

119 Senior counsel for the appellants accepted that the 'Newbury case and the Newbury test' was not raised below. He also accepted that no issue as to the validity of Condition 8 was raised below, directly. However, counsel submitted that the 'facts ... that go to its test were in contest from the outset' and the question of the validity of the condition was implicitly raised.[78]

120 We do not accept the submission of the appellants' senior counsel, made by reference to a Statement of Issues prepared by the appellants in May 2015,[79] that the facts establishing the proposed cause of action were pleaded.[80] The Statement of Issues did not set out alleged facts, or identify any issue about the validity or scope of Condition 8, and was in any event overtaken by a Defence and Counterclaim filed on 21 September 2015.[81] The only basis on which the invalidity of the Easement was asserted in the Defence and Counterclaim was that the legislation only enabled the creation of an easement in gross to serve a public purpose or enable public works to be carried out. The Easement was alleged to be 'unlawful' because it was not intended to, and did not, serve a public purpose.[82] That was the substance of the argument advanced by the appellants at trial.

121 At trial, the appellants pleaded various claims alleging deceptive and unconscionable conduct and fraud. As noted below, when we explain why the grounds must fail in any event, those claims were dismissed by the trial judge on a basis not challenged in this appeal. Those claims made by the appellants at trial did not proceed on the basis, or plead facts establishing, that Condition 8 was invalid. Nor did the appellants plead or contend that the letter of 1 June 1993 (referred to above at [32]) contained a misleading representation, on which Mr Callaghan relevantly relied, of the kind suggested by the appellants' senior counsel during the course of oral submissions in this appeal. A party does not advance a cause of action merely by incidentally referring to some of the facts which may be relevant to determining the existence of a right which is asserted on appeal.

122 Had the appellants' new claims been advanced at trial, the City may have been able to adduce evidence to respond to them. Establishing Condition 8 to be invalid on Newbury grounds required factual findings as to the purpose for which the Condition was imposed, its relationship to the proposed development and the circumstances which informed its reasonableness. Assessing an equitable claim for rescission required a 'close consideration of the facts'.[83] As discussed below, when we explain why the grounds must fail in any event, few facts relevant to the Newbury test were established by the evidence. Considering whether the discretion to grant declaratory relief sought by the appellants in their counterclaim should be exercised would also require an assessment of the facts, including as to why Mr Callaghan did not exercise the alternative avenue of an appeal to the Minister or the Town Planning Appeals Tribunal.[84]

123 The appellants are bound by the conduct of their case below. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against her, to raise a new argument which, whether deliberately or through inadvertence, she failed to put during the trial when she had an opportunity to do so.[85] In particular, a point cannot be raised for the first time on appeal if, as here, it could possibly have been met by calling evidence below.[86]

124 In deciding whether or not a point was taken at trial, no narrow or technical view should be taken. It is necessary to look to the actual conduct of the trial to see whether a point was or was not taken at trial, especially where a pleading is equivocal.[87] In identifying the points taken below, account may be taken of the fact that the appellants were self-represented. However, it was for the appellants (and not the trial judge or the City) to formulate their case. The appellants must bear the consequences of the choices which they made, both as to their lack of representation at trial and the case which they advanced at trial. One of those consequences is that, having briefed senior counsel only to conduct the appeal, not every point which senior counsel may identify can be taken on appeal.

125 At trial, the appellants did not argue that the Deed should be rescinded by reason of Condition 8 failing to satisfy the requirements for a valid planning condition identified in Newbury. Nor was it contended that the scope of Condition 8 should be read down to avoid that outcome. The appellants did not advance a case that the Deed should be rescinded by reason of the limited scope or invalidity of Condition 8. Given that the argument was not raised below and, particularly in a context where evidence could affect the outcome, the appellants should not be allowed to raise these points for the first time in this appeal.

126 Even if the points identified by grounds 1-3 and 6 could be raised in this appeal, the grounds must fail on their merits. That conclusion follows even if it is assumed, without deciding, that either Condition 8 did not, or could not validly, require Mr Callaghan to grant an easement to facilitate vehicular and pedestrian traffic associated with No 339. On that assumption, favourable to the appellants, these grounds, if they could be raised on appeal, would fail at the last step set out at [117] for four reasons.

127 First, even if the Deed were invalid or unenforceable by reason of the invalidity or limited scope of Condition 8, the Deed remains a registrable instrument which purports to affect land (No 337) under the Act. The registration of that instrument and its incorporation into the certificate of title for No 337 created an easement which is not liable to defeasance on the basis of the invalidity of the Deed (the appellants having no in personam claim for the reasons discussed below). No basis was established on which it would have been open to the Court, under s 129C, to have made an order extinguishing or discharging the Easement, under s 129C(1), or declaring that it ought be removed, under s 129C(3)(c), in those circumstances.

Proper basis for impugning the validity of the Deed

128 Secondly, the grant of the Easement arose from the terms of the Deed, rather than Condition 8. The appellants' submissions do not adequately explain how the limited scope or invalidity of Condition 8, if established, leads to the legal conclusion that the Deed is invalid. The existence of a valid condition was not a prerequisite to the capacity of Mr Callaghan to grant, and for the City to acquire, an easement over No 337. The Deed operates as a deed and a contract irrespective of the scope or validity of Condition 8.

129 The appellants' submission that it 'must be inherent in the Newbury test that any execution of it in the meantime also falls' cannot be accepted.[88] The submission that Condition 8 is invalid is a submission that the requirements for the valid exercise of the power to impose a condition were not satisfied. To say that Condition 8 is invalid is to indicate that the purported exercise of the power to impose the condition did not have the legal effect it would otherwise have had. The Deed operated according to its terms irrespective of the legal effect of Condition 8. Any attack on the validity or enforceability of the Deed must focus on legal and equitable doctrines concerned with the validity of deeds and contracts rather than administrative law principles concerning the scope of a power to impose conditions on a planning consent. While, as a matter of fact, Condition 8 may have influenced Mr Callaghan's decision to execute the Deed, that would require evidence and findings of fact.

130 Thirdly, the facts referred to at [18] - [47] above do not support any cause of action in equity for rescission of the Deed. The evidence at first instance was not such as to enable the trial judge to find facts which would support such a claim.

131 At one point in the written submissions, the appellants contend that it is not arguable that Mr Callaghan 'of his free will' granted, or would have granted, the Easement to the City for $1 absent Condition 8.[89] During the course of oral submissions senior counsel for the appellants suggested, rather vaguely,[90] that the trial court should have exercised its equitable jurisdiction to set aside the transaction on grounds such as duress, undue influence or unconscionable conduct.[91] It is unnecessary to enter into any detailed discussion of the law in this area, which was not the subject of any detailed submissions. That is because the facts found and evidence led in this case were incapable of establishing any such equitable cause of action.

132 The evidence was not capable of establishing that Mr Callaghan did not grant the Easement of his own free will, or that he was subject to a disadvantage which affected his ability to judge his own best interests, or subject to any improper pressure. The statement in a letter written by Mr Callaghan on 2 January 1992 that his health was not the best and he needed accommodation in the City in 1992, was not evidence of the truth of that statement. In any event, the statement does not establish that Mr Callaghan's judgement was impaired at any time, much less at the time the Deed was executed. Further, at the time the Deed was executed, Mr Callaghan was represented by solicitors. He was informed of his right to appeal against Condition 8 when it was imposed. The only consequence threatened by the City if the Deed was not executed was a refusal to provide a certificate under the Strata Titles Act (which Mr Callaghan did not require because he was not registering a strata plan) or release a $2,000 bond. Nothing was said to indicate that Mr Callaghan could not propose amendments to the Deed which the City's solicitors had prepared. This was done at a time when the buildings on No 337 had been constructed.

133 In oral submissions, senior counsel for the appellants submitted that the letter from the City's solicitors of 1 June 1993 contained a misrepresentation which would support rescission of the Deed. The alleged false representation was that the Deed in its executed form was required by Condition 8.[92] We do not accept that submission. The letter referred to Condition 8 and the fact that Mr Callaghan did not appeal against the condition. It advised that the City would not provide the (unnecessary) certificate and return of a modest bond until an easement was provided. It attached a form of the Deed. The letter did not expressly make any statement about the legal effect of Condition 8. The communication was between solicitors, who were each in a position to make their own assessment of the legal position. In those circumstances, we cannot imply such a representation from the express terms of the letter. Further, even if a false representation was established, it would still be necessary to show that Mr Callaghan relied on the misrepresentation which induced him to enter into the Deed.[93] There is no evidence of such reliance, which cannot be inferred when the letter was sent to Mr Callaghan's solicitor and there is no evidence as to what the solicitor communicated to his client. It is unnecessary to deal with the question of whether a misrepresentation of law would sustain rescission for misrepresentation.

Any in personam claim does not belong to the appellants

134 Fourthly, any claim for rescission of the Deed on any of the above equitable grounds would lie with Mr Callaghan, not the appellants. The appellants advanced claims of various species of equitable fraud at first instance (not based on the invalidity, or limited scope of, Condition 8). There is no appeal against the trial judge's determination of these claims on the basis that, if there was a legal wrong and damage was suffered, the cause of action belonged to someone other than the appellants.[94] The trial judge was correct in that conclusion. It is one thing to say that equity will not allow a person to take advantage of his or her own false statement to retain a benefit obtained from the person to whom the statement was made. However, there is no 'moral delinquency'[95] in the City enforcing the Deed against the appellants who purchased No 337 knowing of the terms of the registered Easement.

135 Further, any in personam claim lay with Mr Callaghan, who had the choice as to whether he elected to rescind the Deed or seek an order having that effect.[96] There is no evidence of Mr Callaghan making such an election, and the absence of any evidence of his complaining of the use of the Easement to access No 339 strongly suggests that he did not do so. Mr Callaghan had the capacity to elect not to seek rescission of the Deed and then sell No 337 subject to the Easement.

136 Therefore the appellants (as opposed to Mr Callaghan) did not have an in personam claim against the City which could be used either to support the appellants' claim for declarations or resist the City's claim for declaratory and injunctive relief to enforce the Easement.

137 For the above reasons, grounds 1 - 3 and 6 fail.

Ground 5: s 33A of the Public Works Act and easements in gross

138 By ground 5, the appellants raise a matter which was litigated below and which, if established, would establish that the Easement did not exist or was unenforceable as an easement. The appellants contended that the Deed did not create an easement known to the law, because the City did not hold a dominant tenement. As we have already observed, the general law does not allow for an easement where the grantee of the right owns no property which can be benefitted by the alleged easement.[97] Unless there was some statutory authority for the creation of an easement in gross, the Deed would create only a personal licence, not enforceable against the appellants who are not parties to the Deed, rather than an easement. As discussed above, the indefeasibility provisions of the Transfer of Land Act do not give the Deed any legal effect which, on its terms, it could not have.

139 Therefore the efficacy of the Deed to create an easement depended on s 33A of the Public Works Act or s 195 of the Land Administration Act allowing the creation of an easement in gross. If the appellants had established that those provisions did not allow the grant of an easement in gross, then the court could have declared that the claimed easement either did not exist or was unenforceable.

140 The appellants contend that s 33A of the Public Works Act and s 195 of the Land Administration Act only allow the creation of an easement in gross for the purposes of a public work. If s 33A is so limited, then it would not authorise the purported grant of an easement in gross by the Deed (which was clearly not for the purposes of a public work as defined in the Public Works Act).

141 However, for the following reasons, s 33A of the Public Works Act allowed the City to acquire an easement in gross, whether or not the easement was acquired for a public work.

Legislative context in which s 33A of the Public Works Act was enacted

142 Section 33A of the Public Works Act was introduced by the Public Works Act Amendment Act 1950 (WA). Before considering the operation of the 1950 Amendment Act, we note the following aspects of the legislative context in which it was enacted in its application to a 'local authority'. For this purpose, a 'local authority' was defined to include any municipal council or road board, as well as:[98]

any persons or body, however designated, having authority under any statute to undertake the construction of any public work.

143 At that time, s 10 of the Public Works Act provided that, whenever any local authority was authorised, by that or any other Act, to undertake, construct or provide any public work, any land required for the purposes of such work may be taken under the provisions of the Public Works Act. Section 2 of the Act contained a detailed definition of 'public work', which included:

Every work which His Majesty, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorised to undertake under this or any other Act.

144 Section 13A(1) provided that, for the purpose of constructing any underground work, land under the surface may be acquired under the Act without acquiring the surface. Section 17 provided for the Governor, by notice published in the Government Gazette, to declare that land was set apart, taken or resumed under the Act 'for the public purpose therein expressed'. By s 18(1), on publication of that notice the land referred to was, by force of the Act, vested in the Crown or the local authority 'for an estate in fee simple in possession for the public work expressed in such notice', freed of other interests. By s 18(2), the estate and interest of every person in the land was deemed to have been converted into a claim for compensation under the provisions of the Act. Section 23 provided for the land taken to be registered under the Transfer of Land Act in the name of the Crown or the local authority in whom the land was vested.

145 Section 26(1) of the Public Works Act provided that a local authority 'may enter into agreement to take the estate and interest of any person in any land required for public works without complying with the provisions aforesaid'. Section 26(2) provided that compensation was to be as agreed or determined under the Act. By s 26(4), an estate or interest purchased under that section was 'deemed land taken under the authority of this Act' subject to exemptions relating to provisions for compensation.

146 That is, at the time of the introduction of s 33A, the Public Works Act did not provide for the taking of less than an estate in fee simple in land required for a public work, although it allowed for the taking of land under the surface for underground work. The undertaking of the relevant public work could be provided for by the Public Works Act or other legislation.

147 At that time, there were a number of other statutes which authorised a statutory authority to take land under the Public Works Act which was required for the purposes of the other Act.[99] At that time, s 13 of the Town Planning and Development Act provided:

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

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

(b) with the consent of the Governor, take compulsorily, under and subject to the [Public Works Act] any land comprised in such scheme.

148 In this context, the 1950 Amendment Act made three relevantly significant changes to the Public Works Act.

149 First, s 18(1) was amended to provide that, on gazettal of a notice taking land, the land vested in the Crown or local authority 'for an estate in fee simple in possession or such lesser estate for the public work expressed' in the notice. This enabled the taking of an easement over land.

150 Secondly, s 33A was introduced in the following terms:

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

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

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

The requirement that the Governor's consent be provided before it was possible to create an easement in favour of a local authority was removed in 1972.[100] Otherwise, s 33A remained in this form until its repeal. The text of s 33A was adopted from s 88A of the Conveyancing Act 1919 (NSW), which was clearly not confined to easements created for the purpose of public works.[101]

151 The third significant change was to modify the requirement for registration of taken land under the Transfer of Land Act, including by providing that a certificate of title shall not issue for an easement acquired pursuant to the provisions of the Public Works Act.[102]

152 A purpose of these amendments, identified in the second reading speeches to the Bill for the 1950 Amendment Act,[103] was to enable easements to be taken for the purposes of power lines passing over land used for primary production.

Section 195 of the Land Administration Act

153 Section 33A, and provisions of the Public Works Act dealing with the taking of land, were repealed and replaced when the Land Administration Act 1997 (WA) was enacted. Provision for easements in gross in favour of public authorities is now found in s 195 of the Land Administration Act, in the following terms:

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

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

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

154 The words 'and is deemed always to have been possible' indicate a retrospective operation of this provision, so s 195 is at least potentially relevant to a grant of an easement made before its enactment. It is unnecessary to finally resolve this as there is no difference between the operation of s 33A and s 195 which is relevant in this case.

Operation of s 33A of the Public Works Act

155 Section 33A of the Public Works Act did not confer a power on a local authority to acquire an easement. Rather, it operated in a context where other provisions of the Public Works Act, and other legislation which provided for the taking of land under the Public Works Act, conferred a power to take or acquire interests in land, including an easement. Section 33A modified the common law by removing the requirement of a dominant tenement as a necessary element of an easement granted in favour of the Crown or a local authority.

156 Section 33A was expressed in general terms, not confined to a taking or acquisition for a public work or under the Public Works Act (whether applying directly or as incorporated by other legislation). The other legislation which applied the Public Works Act, such as s 13 of the Town Planning and Development Act, did not provide for taking an easement under the Public Works Act for the purposes of a public work. Other legislative provision was not required to authorise a taking for a public work, as that was already provided for by the Public Works Act. Rather, the other legislation provided for taking for other purposes, such as the purposes of a town planning scheme under s 13 of the Town Planning and Development Act. That context counts against limiting the operation of s 33A to easements taken for the purposes of a public work.

157 In our view, s 33A did apply where an easement was acquired in the exercise of the power conferred by s 13(1)(a) of the Town Planning and Development Act. Section 13(1)(a) does not incorporate the provisions of the Public Works Act, in contrast to s 13(1)(b). However, it is a cognate provision to s 26 of the Public Works Act, which existed at the time of the enactment of s 33A. Given the context in which it was enacted, s 33A must at least operate where a power to take land under the Public Works Act, or to make a voluntary acquisition as an alternative to compulsory acquisition, is exercised.

158 We consider that s 33A could also apply where a town planning scheme (now a local planning scheme), or some other provision, empowered a local government to acquire an easement in land. In our view, the legislative history outlined above is inconsistent with an implication, derived from the subject matter of the Public Works Act, that s 33A only operates in relation to public works. In our view, s 33A should be read as applying according to its terms to enable a local government to acquire an easement in gross whenever it is empowered to acquire an easement, regardless of the statutory source of power to do so. The operation of s 33A was objectively intended to reflect the more general operation of s 88A of the Conveyancing Act 1919 (NSW), from which the terms of s 33A were adopted.

159 Ground 5, which in effect contends that s 33A only applies to public works, is not established.

160 We would give a like construction to s 195 of the Land Administration Act which is in substantially identical terms and located in the general provisions of div 6 of pt 9 of that Act.

Grounds 4, 7 and 7A: City's authority to acquire the Easement

161 Grounds 4, 7 and 7A are concerned with the appellants' contention that the City did not have the authority to enter into the Deed. Three possible sources of power were suggested during the course of these proceedings: s 33A of the Public Works Act, s 13(1)(a) of the Town Planning and Development Act and cl 7 of TPS 11.

162 We accept the appellants' contention that s 33A did not authorise the acquisition of an easement but merely made the grant of an easement in gross legally possible where a local authority was otherwise authorised to acquire an easement. That view is consistent with the view of the trial judge,[104] and was ultimately accepted by the City.[105]

163 Ground 7 challenges the trial judge's conclusion that the City's acquisition of the Easement in 1993 was authorised by s 13(1)(a) of the Town Planning and Development Act as a purchase of land 'for the purpose of a town planning scheme'. That submission is consistent with the approach of this court in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission.[106] There it was held that the taking of land zoned (as opposed to reserved) under the Peel Region Scheme was not a taking 'for the purpose of a town planning scheme' within the meaning of s 13(1) of the Planning and Development Act.

164 Ground 7A raises the question of whether cl 7 of TPS 11 authorised the City to acquire the Easement. That turns on whether the Deed was entered into 'in implementing the Scheme' and was 'in respect of any matters pertaining to the Scheme'.

165 However, it is unnecessary to resolve the question of whether the above provisions authorised the City to enter into the Deed. That is because, even if it is assumed that the Deed is invalid because the City was not authorised to enter into the Deed, it remains an instrument which purports to affect No 337 and which, when registered, gave the City an immediately indefeasible legal title to the Easement. For the reasons explained above, the appellants would not have an in personam claim against the City arising from that invalidity. The challenge to the authority of the City to enter into the Deed cannot lead the appellants to success in the appeal in the face of the indefeasibility provisions of the Transfer of Land Act. The success of that aspect of the City's notice of contention means that it is unnecessary to finally resolve the questions of power raised by grounds 4, 7 and 7A.

Ground 8: Relief under s 129C(3) of the Transfer of Land Act

166 As noted above, the success of ground 8 is dependent on the success of one or more of the earlier grounds. Had we concluded that No 337 was not affected by the Easement, or that the Easement was not enforceable, then a declaration under s 129C(3)(a) or (aa) of the Transfer of Land Act may have been appropriate (subject to considering the discretionary matters sought to be raised by ground 3 of the notice of contention). However, the failure of the appellants' arguments as to the existence and enforceability of the Easement means that it is not open to the court to make declarations under s 129C(3) of the Transfer of Land Act.

Ground 9: s 129C(1) of the Transfer of Land Act

167 In the alternative, the appellants contend in ground 9 that the trial judge erred in failing to apply s 129C(1) to declare that the continued existence of the Easement would, unless modified, impede the reasonable user of No 337 without securing practical benefits to other persons, and failing to order reduction of the Easement to 3 m in width. By that ground, the appellants seek to involve the third element of s 129C(1)(a), read with the second element, identified at [97] above.

168 The trial judge resolved this aspect of the case by rejecting the proposition that the continued existence of the Easement would, unless modified, impede the reasonable user of No 337 for the purposes of s 129C(1)(a) of the Transfer of Land Act. His Honour applied a line of English and single judge Australian authority to the effect that, under the second limb of s 129C(1)(a) and cognate provisions, it was necessary for the applicant to show that no reasonable use of the land is possible unless the restriction or easement is modified or extinguished.[107] Clearly, the Easement does not have that effect on No 337.

169 The submissions advanced in support of ground 9 do not engage with or challenge this critical aspect of the trial judge's reasoning.

170 As a single judge, it was appropriate for the trial judge to follow the line of authority to which we have referred. However, the correctness of the line of authority has not been established by any decision of the High Court or an Australian intermediate court of appeal.[108] While some further support for the line of authority can be found in the decision of the Full Court of the Victorian Supreme Court in Re Stani,[109] it does not appear that the court resolved the case on that basis. The correctness of this line of authority was questioned by Morris J in Stanhill Pty Ltd v Jackson,[110] in considering the Victorian equivalent to s 129C(1)(a), and by a Full Federal Court, in considering a significantly different provision, in Morpath Pty Ltd v ACT Youth Accommodation Group Inc.[111]

171 It is undesirable for this court to determine the correctness of this long standing line of authority when it has not been directly challenged and no submissions have been advanced by either party in relation to the question. That is particularly so where ground 9 can be resolved in the alternative manner dealt with below.

172 Ground 9 can be resolved on the basis that any impediment to the reasonable user of No 337 is not without practical benefit to other persons. The concept of practical benefit is broad, and encompasses physical, economic and intangible benefits.[112] In a section which expressly applies to easements created under Part IVA,[113] which include easements in gross for the benefit of local governments,[114] the reference to practical benefits must encompass the benefits which a local government receives from such an easement.

173 The practical benefit to the owners and occupiers of the rear strata lots on No 339 is obvious: use of the Easement is their only means of accessing those strata lots from a public road without entering on another person's land. There is also a practical benefit to the City. As the trial judge found in dealing with the appellants' claim under s 129C(1)(c), the Easement was an instrument by which infill development of multiple dwellings could occur while maintaining access to the street.[115] Further, the City has now approved development of dwellings on the rear strata lots on No 339 without any right of road access. The existence of the Easement avoids the practical need for the City to acquire interests in land to provide access to developments on the rear strata lots on No 339 which it has approved. The appellants' claim that the continued existence of the Easement, would, unless modified, impede the reasonable user of No 337 without securing practical benefits to other persons was properly rejected for this reason.

174 The ground refers to the trial judge erring in failing to order a reduction of the Easement to 3 m in width. No submissions were directed to this aspect of the ground. No findings were made by the trial judge in relation to the required width of the Easement, and it does not appear from the Defence and Counterclaim that this was an aspect of the appellants' claim below. The appellants have not pointed to any evidence on which this court could find that only a 3 m easement was required.

175 Ground 9 and the limited submissions made in support of it also do not challenge or engage with the trial judge's conclusion that he would exercise the discretion conferred against the appellants even if the preconditions to the existence of the discretion were satisfied.[116]

176 The submissions advanced in support of ground 9 also go beyond the ground and contend that the Easement should be deemed obsolete in view of the fact that the City's expectation that No 337 would be strata-titled has not been fulfilled. Given that this matter stands outside the scope of the ground of appeal it is sufficient to note that we do not doubt the correctness of the trial judge's decision that the Easement is not obsolete.

177 In all the circumstances, we are not satisfied that the issues raised by ground 9 provide any basis for setting aside the orders made by the trial judge.

178 As noted above, s 129C(8) of the Transfer of Land Act provides that:

The costs of and incidental to an application made pursuant to the provisions of this section to the court or a judge shall not be awarded against the defendant or respondent in any event.

179 There were three categories of claim made at first instance.

180 The first category was the City's claim for declaratory and injunctive relief to enforce the Easement. This did not involve any application under s 129C of the Transfer of Land Act. Section 129C(8) says nothing about the costs of the claims made by the City in this first category, and the trial judge did not err in failing to apply the provision to the City's costs of that claim.

181 The second category was the City's application under s 129C(1)(c) for a correction of the angles and boundaries of the Easement. That application succeeded on the ground that the proposed modification would not substantially injure the persons entitled to the benefit of the Easement. Section 129C(8) applied to that application, and the trial judge properly excluded that application from the order that the appellants pay the City's costs of the action.[117]

182 The third category was the appellants' application under s 129C(2) made on the counterclaim. The City was the defendant or respondent to that application for the purposes of s 129C(8) of the Transfer of Land Act. Section 129C(8) would have prevented an order that the City pay the appellants' costs of that application even if the application was successful. However, the appellants' application under s 129C(2) failed, and s 129C(8) does not prohibit an award of costs against an unsuccessful applicant.

183 Section 129C(2) expressly provides for an application to be made under s 129C by a person against whom proceedings to enforce an easement are instituted. It does not refer to a defendant or respondent to an action to enforce the easement. In that context, contrary to the appellants' submissions, the reference to the 'defendant or respondent' in s 129C(8) must be to the defendant or respondent to the application made pursuant to the provisions of s 129C. There is no basis for reading that reference as being to the person who is the defendant or respondent to proceedings brought to enforce an easement, when that person makes an application under s 129C(2). Reading s 129C(8) as referring to the defendant or respondent to an application under s 129C, rather than the defendant or respondent to primary proceedings in which an application under s 129C is made by any party, is also consistent with the legislative history described by Pritchard J in Panton.[118]

184 Ground 1 of the notice of contention seeks to uphold the trial judge's judgment on the basis that the easement in gross did serve a public purpose, namely 'enabling orderly and rational urban infill'. Given the way in which we have dealt with the appellants' grounds of appeal, and upheld ground 2 of the notice of contention, it is unnecessary to deal with ground 1.

185 As noted above, it is unnecessary to consider the issues sought to be raised by proposed ground 3 of the notice of contention.

186 For the above reasons, the appellants have not established any basis for impugning the orders made by the trial judge. The appropriate orders are:

(1) The application for an extension of time in which to appeal is granted.

(2) The first respondent have leave to amend ground 2 of its notice of contention in the manner proposed in its minute of proposed notice of contention dated 25 October 2017.

[1] Being lot 2 on Diagram 15585 and being the whole of the land comprised in Certificate of Title Vol 1254 folio 13.

[2] Kitching v Phillips [2011] WASCA 19 [41]; Owners of East Fremantle Shopping Centre v Action Supermarkets Pty Ltd [2008] WASCA 180; (2008) 37 WAR 498 [51].

[3] cf Commissioner of Main Roads v North Shore Gas Company Ltd [1967] HCA 41; (1967) 120 CLR 118, 127 - 128, 134.

[4] City of Belmont v Saldanha [2016] WASC 37 (primary decision).

[5] Most of these provisions were summarised by the trial judge at Primary decision [22] - [26], [78].

[6] As amended by Amendment No 37, published in the Government Gazette on 15 January 1993, page 188.

[7] Primary decision [20] - [21], [27] - [48].

[8] Aerial photographs depicting the development on the lots are at Green AB 76 - 80.

[11] Clause 5.4.2 of TPS 11 provided for up to 35% (or 40% in certain circumstances) of an identifiable street block in an area of the Residential A Zone coded R25 to be developed for attached or grouped housing. This requirement was deleted by an amendment to TPS 11 gazetted on 15 January 1993.

[15] Pars 22, 24 - 25 of the Affidavit of Mr Deague sworn 19 June 2015 (Green AB 130G - 130H).

[28] See the aerial photograph at Green AB 81.

[32] Green AB 70 - 73. At that time, No 339 was described as a portion of Swan Location 33 and being lot 56 the subject of Diagram 31677 and being the whole of the land comprised in certificate of title Vol 2040 folio 233 (see Green AB 74 - 75).

[33] See, Green AB 99 - 100, 105 - 115,

[35] Par 1 - 4 of the Defence and Counterclaim (Blue AB 87 - 88).

[40] See The State of Western Australia v Cunningham (No 2) [2017] WASCA 197 [43] - [48].

[41] Breskvar v Wall (1971) 126 CLR 376, 385 - 386.

[42] There are some exceptions. Easements in gross granted under s 144 of the Land Administration Act 1997 (WA) are not subject to s 129C of the Transfer of Land Act.

[43] As to whether an easement in gross is an incorporeal hereditament (referred to in the definition of 'land' in s 4) cf Commissioner of Main Roads v North Shore Gas Company Ltd (133).

[44] Boyd v Mayor of Wellington [1924] NZGazLawRp 58; [1924] NZLR 1174.

[45] Frazer v Walker [1967] 1 AC 569, 583 - 584.

[46] Breskvar (386), (391), (395 - 396), (399 - 400), (405 - 406), (412 - 413). See also City of Canada Bay Council v F&D Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424.

[47] Owners of Corinne Court v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1.

[48] Corinne Court [74] - [75].

[49] Namely, the proper construction of the easement.

[50] Shean Pty Ltd v Owners of Corinne Court [2001] WASCA 311; (2001) 25 WAR 65.

[51] Owners of East Fremantle Shopping Centre v Action Supermarkets [30] - [32].

[52] Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633.

[54] See also Chiu v Healey [2003] NSWSC 857; (2003) 11 BPR 21,241 [24] and B Edgeworth, Butt's Land Law (7th ed) [9.230].

[57] Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604, 613. See also 638.

[58] Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 esp at 542 - 543; Palais Parking Station v Shea (1980) 24 SASR 425, 429 - 434.

[59] Palais Parking (430). See also (434).

[60] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409 (Mandurah Enterprises HC).

[61] Mandurah Enterprises HC [41].

[62] Mandurah Enterprises HC [42] - [43].

[63] Mandurah Enterprises HC [43].

[64] Mandurah Enterprises HC [45].

[66] See s 129C(6) of the Transfer of Land Act. However, s 129C does not apply to easements over Crown land granted under s 144 of the Land Administration Act: see s 129C(9) of the Transfer of Land Act.

[67] See Treweeke v 36 Wolseley Road Pty Ltd [1973] HCA 27; (1973) 128 CLR 274, 285 - 287; Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605, 614 - 616.

[68] Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163, 167.

[69] Davidson v Elkington [2011] WASC 29 [77].

[70] In re Ellenborough Park [1956] 1 Ch 131, 164; Owners of East Fremantle Shopping Centre West Strata Plan 8618 [51].

[71] Appellants' submissions dated 15 November 2017, par 47, see also pars 81 - 83; appeal ts 79 - 81.

[72] Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45; (2007) 233 CLR 528 [39].

[73] Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281 [32], [37] - [39].

[74] Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] HCA 3; (2006) 229 CLR 545 [37].

[75] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [193] - [198].

[76] Black v Garnock [2007] HCA 31; (2007) 230 CLR 438 [10].

[77] Citing Newbury District Council v Secretary of State for the Environment [1981] AC 578, 599 - 600 and Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87, 105 - 106.

[79] White AB 239 - 241; Blue AB 79 - 81.

[82] Paragraphs 1 - 5 of the Defendants' Defence and Counterclaim.

[84] Under s 8A and s 39 of the Town Planning and Development Act as it stood at the time.

[85] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483.

[86] Water Board v Moustakas (1988) 180 CLR 491, 497.

[89] Appellants' submissions dated 15 November 2017, par 12.

[91] As to which, see the recent discussion in Thorne v Kennedy [2017] HCA 49; (2017) 91 ALJR 1260 [26] - [40].

[93] Attorney General (NSW) v Peters [1924] HCA 31; (1924) 34 CLR 146, 150.

[95] See Redgrave v Hurd (1881) 20 Ch D 1, 12 - 13; Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 [25].

[96] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 222, 224 - 225.

[97] See AJ Bradbook and SV MacCallum, Bradbook and Neave's Easements and Restrictive Covenants (3rd ed, 2011) pars 1.10 - 1.12.

[98] Section 2 of the Public Works Act, definition of 'local authority'.

[99] See, for example, s 46(2) of the Water Boards Act 1904 (WA); s 10(1) of the Electricity Act 1945 (WA).

[100] Section 6 of the Public Works Act Amendment Act 1972 (WA).

[101] Inserted by the Conveyancing (Amendment) Act 1930 (NSW), referred to in the marginal note to s 33A of the Public Works Act.

[102] Section 23(1) and s 33B of the Public Works Act.

[103] See Western Australia, Parliamentary Debates, Legislative Assembly, 2 November 1950, 1641 - 1642 (Mr D Brand, Minister for Works) and Western Australia, Parliamentary Debates, Legislative Council, 14 November 1950, 1865 - 1866 (Mr CH Simpson, Minister for Transport).

[106] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 affirmed in Mandurah Enterprises HC [33] - [36].

[107] Primary decision [97] - [98], citing Re Ghey & Galton's Application [1957] 2 QB 650, 663; Heaton v Loblay (1960) SR (NSW) 332, 335; Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743 [14] and Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 [148]. See also, to the same effect, Lolakis v Konitsas [2002] NSWSC 889 [50], Vrakas v Registrar of Titles [2008] VSC 281 [28] - [29]; Prowse v Johnstone [2012] VSC 4 [97] - [98] and cases there cited. The line of authority begins with the observations of Farwell J in Re Henderson's Conveyance [1940] Ch 835, 846 which were adopted by Romer LJ in In re Truman [1956] 1 QB 261, 270. It was applied by the Privy Council in relation to similar Jamaican legislation in Stannard v Issa [1987] AC 175, 186 - 187. See also, in relation to Tasmanian legislation which was expressed in materially different terms and which had a different legislative history, Pearson v Richardson (2012) 21 Tas R 461 [52] - [62] (where a broader approach was adopted).

[108] The NSW Court of Appeal considered it unnecessary to decide the point in TZ Developments Pty Ltd v Rickman Pty Ltd (1993) 7 BPR 97,582, as did the Queensland Court of Appeal in Oldfield v Gold Coast City Council [2009] QCA 124; [2010] 1 Qd R 158 [24] - [25]. The issue was not raised in Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228, where the argument of the unsuccessful applicant for removal of a restrictive covenant was premised on it being necessary to show that the continued restriction would impede all reasonable uses of the subservient tenement: see [46] - [48], [79] - [80]. The issue was also not necessary for the court to decide in that case, in which the applicant's claim was also rejected on the ground that it failed to establish that the continued restriction did not secure practical benefits to other persons: see [81] - [83].

[109] Re Stani (Unreported, Full Court of the Supreme Court of Victoria, No M10850, 7 December 1976), pages 8 - 9.

[110] Stanhill Pty Ltd v Jackson [2005] VSC 169; (2005) 12 VR 224 [14] - [21].

[111] Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325, 338 - 341.

[112] As to which see Panton [86] - [89], [149]; Vrakas [30], [33] - [36]; Anascot [81] - [82].

[113] Section 129C(6) of the Transfer of Land Act.

[114] Section 136C(3) of the Transfer of Land Act.

[116] Primary decision [103] - [107].

[117] Order 6 made on 11 February 2016.

[118] Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 (S) [17] - [24].