Court of Appeal (WA)|2018-01-31|Before: Mitchell JA

SALDANHA -v- CITY OF BELMONT [2018] WASCA 7 (31 January 2018)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SALDANHA -v- CITY OF BELMONT [2018] WASCA 7

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

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

Public Works Act 1902 (WA), s 33A

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

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

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

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

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]

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

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:

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.
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.
The Court should in its discretion refuse relief to the appellants on the grounds that:

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;

The easement was entered into and registered in 1993;

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.

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]

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

SALDANHA -v- CITY OF BELMONT [2018] WASCA 7 (31 January 2018)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (415 paragraphs)

SALDANHA -v- CITY OF BELMONT [2018] WASCA 7 (31 January 2018)

Proper basis for impugning the validity of the Deed

Any in personam claim does not belong to the appellants

Legislation Cited (10)

Cases Cited (26)