Clarence City Council v Howlin

[2016] TASSC 61

[2016] TASSC 61

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Clarence City Council v Howlin [2016] TASSC 61

PARTIES:  CLARENCE CITY COUNCIL
  v
  HOWLIN, Darryl Robert
  QIN, Lihua
  SHI, Xiaomin

McCORMACK, Andrew John
  McCORMACK, Christine Lynette
  CLARKSON, Robert Henry
  CLARKSON, Janet Rose
  CUPPARI, Michael
  CUPPARI, Meredith Ann
  TAPPING, Ralph Desmond
  TAPPING, Beverley Anne
  GRIGGS, Nicholas John
  GRIGGS, Janet Maree
  ATKINS, Walter George
  v
  QIN, Lihua
  SHI, Xiaomin
  RECORDER OF TITLES

FILE NOS:  823/2014

1010/2014

DELIVERED ON:  21 November 2016
DELIVERED AT:  Launceston
HEARING DATES:  15 – 18 March 2016
JUDGMENT OF:  Pearce J

CATCHWORDS:

Real Property – Torrens title – Indefeasibility of title – Exceptions to indefeasibility – Omitted or misdescribed easement – Generally – Exception confined to when land brought under Torrens system.

Land Titles Act1980 (Tas), s 40(3)(e)(ia).
Dobbie v Davidson (1991) 23 NSWLR 625, applied.
Parramore v Duggan [1995] HCA 21, 183 CLR 633, considered.
Aust Dig Real Property [1254]

Real Property – Torrens title – Indefeasibility of title – Exceptions to indefeasibility – Generally – Equitable easement not established.

Land Titles Act1980 (Tas), s 40(3)(e)(ii).
Parramore v Duggan [1995] HCA 21, 183 CLR 633, considered.
Aust Dig Real Property [1242]

Statutes – Acts of parliament – Interpretation – Interpretation Acts and provisions – Preservation of rights, liabilities and legal proceedings on amendment, repeal, lapsing etc of Act or provision – Accrued right, privileges and liabilities – Acquired right to easement as exception to indefeasibility of servient title under repealed Act.

Acts Interpretation Act 1931 (Tas), s 16(1)(c).
Aust Dig Statutes [1053]

Statutes – Acts of parliament – Interpretation – Interpretation Acts and provisions – Preservation of rights, liabilities and legal proceedings on amendment, repeal, lapsing etc of Act or provision – Contrary intention – Preservation of right contrary to principles of Torrens system of title by registration.

Acts Interpretation Act 1931 (Tas), s 16(1)(c).
Real Property Act 1862 (Tas), s 40(b).
Land Titles Act 1980 (Tas), ss 40(3), 173(2).
Breskvar v Wall (1971) 126 CLR 376; Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45, 233 CLR 528; Queensland Premier Mines Pty Ltd v French [2007] HCA 53, 235 CLR 81, referred to.
Aust Dig Statutes [1054]

Real Property – Easements – Easements generally – Creation – By express agreement or under statute – Statutory easements.

Conveyancing and Law of Property Act1884 (Tas), s 84J.
Aust Dig Real Property [1471]

REPRESENTATION:

Counsel:

Plaintiff (823/2014):  S B McElwaine SC
             First Defendant:  In person
             Second Defendant:  In person

Third Defendant:  No appearance

Plaintiffs (1010/2014):  A Walker
             First Defendant:  In person
             Second Defendant:  No appearance

Third Defendant:  P Turner

Solicitors:

Plaintiff (823/2014):  Shaun McElwaine + Associates

Plaintiffs (1010/2014):                   Dobson Mitchell & Allport
             Third Defendant:  Office of the Solicitor-General

Judgment Number:  [2016] TASSC 61
Number of paragraphs:  137

Serial No 61/2016

File No  823/2014

1010/2014

CLARENCE CITY COUNCIL v DARYL ROBERT HOWLIN,
LIHUA QIN and XIAOMIN SHI

ANDREW JOHN McCORMACK, CHRISTINE LYNETTE McCORMACK, ROBERT HENRY CLARKSON, JANET ROSE CLARKSON, MICHAEL CUPPARI, MEREDITH ANN CUPPARI, Ralph Desmond TAPPING, BEVERLEY ANNE TAPPING, NICHOLAS JOHN GRIGGS, JANET MAREE GRIGGS and WALTER GEORGE ATKINS v LIHUA QIN, XIAOMIN SHI and RECORDER OF TITLES

REASONS FOR JUDGMENT  PEARCE J

21 November 2016

1. These two actions concern an area of privately owned land at Opossum Bay which has come to be known as Marsh Street. Although ancillary questions arise, what is principally at issue is whether the owners of certain adjoining land have the benefit of a right of carriageway over a disputed portion of Marsh Street, and if so, whether the defendants have substantially interfered with their enjoyment of it. All of the land involved in the actions is, and has at all material times been, registered under the Land Titles Act 1980 ("the LTA") or the now repealed Real Property Act 1862 ("the RPA 1862"). The LTA provides, by s 40, that a registered proprietor holds the estate or interest in land recorded in a folio of the register subject only to other estates and interests recorded in that folio. With one exception, the claimed rights of way are registered on the titles of the dominant tenements. None are registered on the title of the servient tenement. The question is whether, under the Torrens system in Tasmania, the owners of the dominant tenements are entitled to the benefit of the rights of way registered on their titles as an exception to the indefeasibility of the title of the servient tenement. For the reasons which follow, that question should be answered in the negative. However, the owners of the dominant tenements seek, and should be granted, a statutory easement with orders to restrain obstruction of it.

2. All of the land is in the municipal area known as the City of Clarence and is subject to local government by the Clarence City Council, which I will refer to as the Council.

3. Attached to these reasons is a survey diagram marked with the registered number 62456 which I will use to describe the land and issues in the actions. I will explain the derivation of the diagram in due course.

The circumstances of the dispute

1. Darryl Howlin owns the property at Opossum Bay called "Highbury". Highbury is marked to the east of the diagram as "Howlin land".  He and his former wife, Helen Howlin, became registered proprietors on 21 July 1999. On 14 July 2014 the property was transferred into Mr Howlin's sole name. What is known as Marsh Street is the land marked "Proposed Roadway" which runs between Spitfarm Road and the Howlin land. Spitfarm Road is marked to the west of the diagram. Mr Howlin uses Marsh Street for access to his land. Spitfarm Road is a public road but, for reasons I will explain, Marsh Street is not. It is a strip of land comprising two parcels. The title to each parcel is registered in private ownership. The parcel closest to Spitfarm Road is marked on the diagram as Lot A. By transfer dated 15 July 2003 and registered 5 August 2003, Lot A was transferred by Mr and Mrs Gillies to Mr Howlin and his former wife. Some time between then and 2014 Mr Howlin became sole registered proprietor. By transfer registered 16 July 2014, the land was transferred to Mr Howlin's present wife, Lihua Qin, and her daughter Xiaomin Shi.

2. The other part of Marsh Street is marked on the diagram as Lot B. Lot B is presently owned by Paul and Jenny-Ann Geappen and so it may be referred to as either Lot B or the Geappen portion of Marsh Street. Lot B is only part of Mr and Mrs Geappen's title. I will refer to their land as "the Geappen land", and it is marked on the diagram as Lot 10. Lot 10 includes Lot B. Mr and Mrs Geappen became registered proprietors of Lot 10 on 24 September 2008. Before then the land was owned by a Mrs Brinckman.

3. A number of other properties have frontage to Marsh Street. Those properties are marked on the diagram with lot numbers from Lot 1 to Lot 9. The owners have been using Marsh Street for access and the provision of services to their homes. The Council provides local government services to the owners of those lots. Not all of the present owners of those lots are plaintiffs in these proceedings, but most are. Mr and Mrs McCormack, Mr and Mrs Clarkson, Mr and Mrs Cuppari, Mr and Mrs Tapping, Mr and Mrs Griggs and Mr Atkins, who I will call "the plaintiff owners", all own at least one lot. It can be seen from the diagram that all of the subject lots adjoin only the Lot B part of Marsh Street. Each of the plaintiff owners has a registered right of way over Lot B. However to get to their houses from Spitfarm Road, which is the only means of access, they also need to cross Lot A. In the action brought by the plaintiff owners they all claim the benefit of a right of carriageway over Lot A. The claim is made on a number of alternative bases. They also claim the grant of an easement over Lot A for the provision of services to their respective homes.

4. The status of Marsh Street has been the subject of dispute between Mr Howlin and the Council for many years. I will detail some of the litigation later in these reasons. However these two actions arise in the following way. On 24 July 2012 Mr Howlin sent an email to Mr Clarkson referring to other legal proceedings concerning Marsh Street, and asserting an entitlement "at common law to fence and gate Marsh Street, subject to provisions for the Geappen land only". He said to Mr Clarkson that he "may need to get legal advice as I will not be granting access to your property in the event that Marsh Street is found not to be a public highway … Garbage and mail services over Marsh Street will need to cease". On the same day Mr Howlin sent a copy of his email to the general manager of the Council, asserting "Could you please advise your garbage contractor to cease services over Marsh Street as from next week and accordingly also notify the frontagers to Marsh Street of the suspension of services."

5. The evidence does not reveal any other steps until 17 July 2014, when Mr Howlin sent another email to the Council. Amongst other things, the email requested the Council to advise its garbage collection contractor, Veolia, to cease using Marsh Street from the following week, and signalled Mr Howlin's intention to fence and gate Marsh Street. He asked the Council to advise:

   "… if Council has any objection to, or indeed legal right to object to the fencing and gating of Marsh Street, subject to granting keyed access to the frontagers to Marsh Street who have a right of Carriageway registered over the 'Howlin Portion' to Marsh Street."

6. On 24 July 2014 Mr Howlin sent another email again requesting the Council to advise its garbage collection contractor to cease using Marsh Street "as from next week", and to advise the "frontagers" of the "suspension of services". On 25 July 2014 an email from Mr Howlin to the Council, copied to the lawyers of some of the owners, read in part:

   "Take note that the title to the 'Howlin Portion' of the Marsh Street Roadway has been sold and transferred to the ownership of L Qin and X Shi. The instruction of Qin and Shi is to fence, gate and lock the 'Qin and Shi Portion' of Marsh Street unless the consideration of $100,000 per grant of Right of Carriageway for the seven frontagers to Marsh Street, who do not have a legally enforceable Right of Carriageway over their land, is met by Council."

7. This time, Mr Howlin acted in accordance with his correspondence. On 10 September 2014 he erected a fence and gate at the western end of Marsh Street near where Lot A joins Spitfarm Road. On 11 September 2014 a written notice bearing that date and concluding with "Signed L Qin & X Shi" was given to each of the plaintiff owners that the Council garbage collection contractor and Australia Post would no longer be permitted to use Marsh Street. Since then, an injunction has been in place restraining Mr Howlin, Ms Qin and Ms Shi from restricting access to any person through Marsh Street.

The land owned by the plaintiff owners

1. By reference to the diagram, the land owned by the plaintiff owners is as follows:

   ·     Mr and Mrs Tapping own Lots 1 and 2.

   ·     Mr and Mrs Griggs own Lot 4.

   ·     Mr Atkins owns 59 Spitfarm Road which includes Lot 5. 

   ·     Mr and Mrs McCormack own Lot 6.

   ·     Mr and Mrs Clarkson own Lot 8.

   ·     Mr and Mrs Cuppari own Lot 9.

2. As will be seen, each of the plaintiff owners, except Mr and Mrs McCormack for Lot 6 and subject to some ambiguity concerning Lot 1 and Lot 8, have the apparent benefit of a registered easement in the nature of a right of carriageway over both Lot A and Lot B. The problem arises because no burdening easement is registered in their favour over the title to Lot A. Each plaintiff owner claims the benefit of the easement despite the absence of registration on the servient tenement.

Rights of carriageway over Lot B

1. In about 1980 Mr and Mrs Gillies were the owners of the Howlin land. They wished to use Marsh Street to access their land. They sought and obtained a right of carriageway over Lot B from its then owner, Margaret Brinckman. The title of Mrs Brinckman's successors in title, Paul and Jenny-Ann Geappen, is now comprised in folio of the register volume 249718 folio 1. Their title records the burden of that right of carriageway. The Howlin land is now comprised in folio of the register volume 165932 folio 1. That title records the benefit of a right of carriageway over Lot B.

2. The title to the Geappen land is also subject to a burdening easement expressed as "Right of Carriageway [appurtenant to the several Lots on Diagram No 62456] over the land marked ABCD on D62456". The reference to D62456 is a reference to the survey diagram registered number 62456 which is the diagram attached to these reasons. The land marked ABCD on that diagram is Lot B. The result is that each of the owners of the "several lots" shown on the plan, including the plaintiff owners, have the benefit of a registered right of carriageway over Lot B. The existence of that right is not in issue in these actions, and Mr and Mrs Geappen are not party to the proceedings.

Rights of carriageway registered over Lot A

1. Lot A is comprised in folio of the register volume 219376 folio 6. The current registered proprietors are Lihua Qin and Xiaomin Shi. Lot A is subject to only one registered burdening easement. It is the right of way in favour of the Geappen land. The easement is registered on both the dominant and servient tenements. The title to Lot A is expressed to be subject to a burdening easement in these terms, "A right of carriageway (appurtenant to the land comprised in Certificate of Title Volume 700 folio 60) over the land comprised herein." Certificate of title volume 700 folio 60 is an earlier title reference for the Geappen land. The register shows the current title to the Geappen land as having the benefit of a right of carriageway over "the land marked ADFE on D 62456". That is Lot A. The undisputed result is that the registered proprietor for the time being of the Geappen land has a right of carriageway over Lot A.

2. The title to Lot A does not have registered on it an easement benefitting any of the plaintiff owners.

The procedural history, the pleadings and the issues

1. On 2 December 2014 the plaintiff owners commenced an action against Ms Qin and Ms Shi, also joining the Recorder of Titles as a defendant. It is action 1010 of 2014. I will refer to it as "the plaintiff owners' action". The first statement of claim was delivered in January 2015. Mr Howlin's wife, Ms Qin, filed a defence to that statement of claim. Ms Shi did not file a defence and has played no part in the action. An amended statement of claim was delivered in August 2015. There is no pleading by Ms Qin to the amended claim, but her original defence can be taken to apply to it. The Recorder of Titles did not appear to the writ. Mr Turner, from the office of the Solicitor-General, appeared as counsel for the Recorder of Titles but in a role limited to providing the Court with assistance.

2. On 15 September 2014 the Council commenced a separate action against Mr Howlin, Ms Qin and Ms Shi. It is action 823 of 2014. I will refer to it as "the Council action". The Council delivered a statement of claim in September 2014. Mr Howlin and Ms Qin appeared to the writ and filed a defence. In September 2014 Ms Shi wrote to the Registrar of this Court from China, where she apparently lives, indicating that she did not wish to participate in the proceedings and that she undertook to abide by the result. An amended statement of claim was delivered in this action in August 2015. No defence was delivered by Mr Howlin and Ms Qin to the amended statement of claim, but the original defence can be taken to apply to it.

3. The two actions were heard together. Ms Shi did not appear at the trial. Mr Howlin and Ms Qin both appeared unrepresented. Both gave evidence. For part of the proceedings Ms Qin was assisted by an interpreter.

4. Although the pleadings are, in each case, lengthy, the disputed issues can be easily distilled. It is simplest to start with the central contention of the defendants. Mr Howlin, in the Council action, and Ms Qin in both actions, assert that, by operation of the LTA, s 40, the title to Lot A, of which Ms Qin and Ms Shi are registered proprietors, is indefeasible. That is, the title to Lot A is subject only to such estates and interests as are recorded on the folio of the register. Consequently, they contend, because the easements claimed by the plaintiff owners are not registered on the title to Lot A, the title is not subject to them, even if the title of a registered proprietor includes a statement in the folio to the effect that the land described in the folio of the register has appurtenant to it the benefit of the claimed easement. Ms Qin and Mr Howlin claim that the indefeasibility of the title to Lot A is not subject to any form of unregistered easement, and that the Council has no right to enter Lot A. In the alternative, Ms Qin and Mr Howlin claim that the fence and gate built by Mr Howlin is not an unlawful interference or interruption to any rights of way which may benefit the title of the plaintiff owners, or the right of the Council to enter Lot A.

5. The plaintiff owners accept that rights of way registered as benefitting easements on their own respective titles are not recorded on the folio of the register for Lot A. However they each claim easements as exceptions to indefeasibility:

   (a)as a right to enjoy the benefit of an easement accrued or acquired under the RPA 1862 and not affected by repeal of that Act by the LTA;

   (b)as an easement created by deed but unintentionally omitted from the folio of the register for the servient land when that servient land was brought under the LTA or the RPA 1862: s 40(3)(e)(ia); and

   (c)as an equitable easement or easements, the registered proprietors of Lot A not being bona fide purchasers for value without notice of the easement who have lodged a transfer for registration: s 40(3)(e)(ii).

6. The plaintiff owners seek declarations that they are entitled to the benefit of the easements, an order rectifying the register by the Recorder of Titles registering the easement on the title to Lot A and injunctive relief. In the alternative, the plaintiff owners seek an order under the Conveyancing and Law of Property Act 1884, s 84J, granting to them a statutory right of user in the nature of an easement; for rights of way and a service easement to facilitate the reasonable user of their land.

7. In the Council action, the Council asserts that, by fencing and gating Lot A, and by his communications with the Council's contractor, Mr Howlin, acting as the agent of Ms Qin and Ms Shi, has wrongly prevented the Council from performing its statutory responsibilities. In the Council action the plaintiff seeks a declaration of the existence of the rights of way, an injunction restraining interference, and a mandatory injunction requiring removal of the fence constructed by Mr Howlin.

Litigation history

1. Disputes over Marsh Street have given rise to much litigation. The underlying reason for all of the litigation is Mr Howlin's wish to subdivide the Howlin land on terms acceptable to him. For many years Mr Howlin has been attempting to establish that Marsh Street is a public highway. If he had been successful in establishing that Marsh Street was a public highway, it would assist his attempt to subdivide the Howlin land, and would mean that it could be subdivided into a greater number of lots. The litigation to date has dealt only tangentially with the existence of easements over Lot A. However in the course of the trial of these actions Mr Howlin continued to maintain that Marsh Street is a highway. It is futile for him to do so. The issue is irrelevant to the questions I am to determine, as defined by the pleadings in the actions. In any event, between Mr Howlin and the Council, the issue of whether Marsh Street is a public road is finally and conclusively established against him. In proceedings between Mr Howlin and the Council, Evans J determined that Marsh Street is not a highway: Clarence City Council v Howlin [2012] TASSC 26, 192 LGERA 360. An appeal by Mr Howlin was unsuccessful: Howlin v Clarence City Council [2013] TASFC 7. An application by Mr Howlin to the High Court for leave to appeal was refused: Howlin v Clarence City Council [2014] HCASL 3. The reasons for the issue estoppel which thereby arises were fully explained by Porter J in Howlin v Resource Management and Planning Appeal Tribunal[2015] TASSC 48 at [46]-[48] by reference to Quarmby v Qasair Investments Pty Ltd [2014] TASFC 11. In my view the result also binds parties in the same legal interest, Ms Qin and Ms Shi, as successors in title. See also Achurch v The Queen [2014] HCA 10, 253 CLR 141 at 152-154 [14]-[17] and Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28, 323 ALR 1.

1. There have been other decisions, including: Howlin v Brinckman [2007] TASSC 59, Howlin v Brinckman (No 2) [2007] TASSC 100, 17 Tas R 99, Howlin v Resource Management and Planning Appeal Tribunal [2009] TASSC 9, 18 Tas R 323, Howlin v Brinckman [2009] TASSC 18, Howlin v Resource Management and Planning Appeal Tribunal (No 2) [2009] TASSC 20, 18 Tas R 397, Clarence City Council v Howlin [2010] TASFC 2; Clarence City Council v Howlin (No 2) [2010] TASFC 10, Howlin v Resource Management and Planning Appeal Tribunal [2015] TASSC 48, and, most recently, Howlin v Resource Management and Planning Appeal Tribunal (No 3) [2016] TASSC 49. Mr Howlin seeks to rely on the decision of Slicer J in Howlin v Brinckman [2007] TASSC 59 as creating res judicata or issue estoppel against the plaintiffs in these actions. It has no such effect. It is irrelevant. That decision creates no estoppel and is not binding on me or any of the plaintiffs. The plaintiffs in these actions were not, and could not have been, parties to that action which concerned only Mrs Brinckman's land and whether Marsh Street was a public highway. Mr Howlin's reliance on the Supreme Court Civil Procedure Act 1932, s 42(1), as meaning that the owners of the dominant tenements are bound by Slicer J's decision, is misconceived. Although there was no appeal from his Honour's decision, the Full Court expressed considerable doubt over the reasoning in Howlin v Brinckman (No 2) (2007) 17 Tas R 99 and it is contrary to the reasoning of Evans J in Clarence City Council v Howlin [2012] TASSC 26, 192 LGERA 360 and the Full Court in Howlin v Clarence City Council [2013] TASFC 7.

Indefeasibility

1. The Torrens system of registered title was introduced in Tasmania by the RPA 1862 and is continued by the LTA. It "is not a system of registration of title but a system of title by registration": Breskvar v Wall (1971) 126 CLR 376, per Barwick CJ at 385. As explained in Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45, 233 CLR 528 at 531 [5]:

   "Together with the information appearing on the relevant folio, the registration of dealings manifests the scheme of the Torrens system to provide third parties with the information necessary to comprehend the extent or state of the registered title to the land in question."

2. The LTA commenced by proclamation on 1 October 1981. It repealed a number of Acts including the RPA 1862: s 173 and Sch 2. The provisions of the LTA dealing directly with title by registration are ss 39 and 40 which relevantly provide:

   "39  Folio of the Register conclusive evidence of title, &c

   (1)   A folio of the Register is evidence of the particulars recorded in the folio.

   (2)   Except as otherwise provided in this Act, a folio of the Register is conclusive evidence that —

   (a)  the person named in the folio as registered proprietor of or as taking an estate or interest in the land described in the folio is entitled to that land for that estate or interest; and

   (b)  that land has been duly brought under this Act.

   40    Estate of registered proprietor indefeasible

   (1)  For the purposes of this section indefeasible, in relation to the title of a registered proprietor of land, means subject only to such estates and interests as are recorded on the folio of the Register or registered dealing evidencing title to the land.

   (2)  Subject to subsections (3) and (4), the title of a registered proprietor of land is indefeasible.

   (3)  The title of a registered proprietor of land is not indefeasible —

   …

   (e)  so far as regards —

   (i)an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land; or

   (ia)an easement created by deed but unintentionally omitted from the folio of the Register for the servient land when that servient land was brought under this Act or the repealed Act; or

   (ib)an easement that has been created under this Act but unintentionally omitted from the folio of the Register for the servient land; or

   (ii)an equitable easement, except as against a bona fide purchaser for value without notice of the easement who has lodged a transfer for registration; …".

3. An earlier form of s 40(3)(e) was considered in Parramore v Duggan (1995) 183 CLR 633. At the time that Parramore was decided the exceptions to indefeasibility for easements were confined to those in subpars (i) and (ii). Subparagraphs (ia) and (ib) were subsequently, although at different times, inserted by amendment. However the underlying force of the decision in Parramore remains applicable. The principal judgment was written by Toohey J, with whom Brennan, Deane, Dawson and McHugh JJ agreed. Brennan J (as he then was) gave some additional reasons, and stated at 636 that an "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 s40(3)(e) of the LTA". In Parramore, Mrs Duggan was the registered proprietor of land and the folio of the register stated that appurtenant to that land was a right of way over land marked "roadway" on adjoining land which was owned by Mr Parramore. However the folio of the register for Mr Parramore's land did not show the burden of an easement. The matter came before the court as a special case stated and a question was whether Mr Parramore's title, which was not expressed to be subject to any easement, could be so subject merely by virtue of the statement on Mrs Duggan's title. Brennan J, at 635, referred with approval to the essential characteristic of the Torrens system stated by Barwick CJ in Breskvar v Wall (above) at 385-386 as follows:

   "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."

4. Brennan J then continued:

   "A Torrens system statute necessarily contains two key provisions: one, a provision that makes a certificate (or duplicate certificate) of title conclusive proof of the title of the registered proprietor so that no other person can be heard to claim that he or she is the proprietor of the title to which the certificate relates; and, two, a provision that makes that title immune from defeasance by a paramount title. ...

   ...

   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."

5. The LTA, s 106, is also relevant. It provides:

   "106(1)  Subject to subsection (2), a statement in a folio of the Register to the effect that the land comprised in the folio has the benefit of an easement shall be conclusive evidence that the land has that benefit.

   (2)  Subsection (1) shall not be construed so as to give effect as an easement to a right which is not recognised as an easement at common law.

   (3)  An easement shall not be implied from anything appearing on a plan deposited with the Recorder after the proclaimed date."

6. In Parramore v Duggan at 643, Toohey J said of s 106:

   "Section 106(1) is an evidentiary provision. It prevents a collateral attack upon the existence of an easement to which the title refers. But it does not preclude reliance upon any other provision of the Act which confers indefeasibility of title upon the registered proprietor of servient land free from the easement ...".

7. The decision in Parramore v Duggan shows that it is the content of the register which vests title and determines the nature and extent of the title and not the documents or historical facts which led to the registration. By virtue of the LTA, s 106, proof by the proprietor of dominant land that the land has the benefit of an easement stated on the folio will be prima facie evidence of the existence of the easement. However, registration of the easement on the title to the dominant land will not prevent the owner of the servient tenement from relying on the provisions in the LTA which confer indefeasibility of title on the servient land free from the easement. Thus, success of the action brought by the plaintiff owners depends on them establishing that their claimed easement either falls within one of the exceptions to the indefeasibility of the title of the registered proprietors of Lot A under the LTA, s 40(3), or that, on some other basis, they are entitled to an easement which overcomes the claim of the registered proprietors of Lot A to indefeasibility of the servient title.

The derivation of titles

1. Consideration of the plaintiff owners' claims to the benefit of the exceptions to indefeasibility requires consideration of the creation of the relevant titles. The following narrative represents my findings from the evidence in the actions heard before me. The findings of Evans J as expressed by his Honour in his 2012 decision relevantly coincide with my conclusions. The following narrative draws on some of the narrative used by his Honour. The genesis for what is now known as Marsh Street is a tracing of a proposed subdivision of land owned by Thomas George Charles Brown at Opossum Bay. The tracing was prepared by Redvers Allan Terry, a licensed surveyor. A copy of it is attachment A to Evans J's reasons. The Council approved the plan and Mr Terry prepared a survey diagram dated 23 February 1945 which reflects and attaches the tracing. At that time, the title to Mr Brown's land was registered under the RPA 1862. Mr Brown's title to the land that was the subject of his subdivision was certificate of title volume 455 folio 96. The survey diagram was lodged with the Recorder of Titles on 26 September 1945. The reference number then given to it was 167/34. The diagram I have attached to these reasons is a reduced version of that plan with some additions. The additions include:

   ·     The names "Spitfarm Road", "Lot A", "Lot B", "Lot 10" and "Howlin land" to identify those features.

   ·     A number of handwritten additions, including the names of the purchasers of Lots 1 to 9 in the Brown subdivision, together with references to the relevant transfers, presumably added by employees at the Recorder of Titles Office.

   ·     The registered number allocated to the diagram, P 62456, presumably added by an employee at the Recorder of Titles Office.

2. As I have already said, the land which has since become known as Marsh Street is that described on the diagram as "Proposed Roadway". The nine subdivided lots are shown as Lots 1 to 9.

The derivation of Lot A

1. I will first mention Lot A. The diagram, as prepared by Mr Terry in February 1945, included a note that T G C Brown was the owner of Lot A of the proposed roadway. When the plan was registered Mr Brown did not own Lot A, although he did own Lot B. Lot A was not transferred to Mr Brown until it was transferred to him by Ethel Barber by transfer dated 21 March 1946. The Recorder registered the transfer and issued a certificate of title to Mr Brown dated 8 July 1946. The number on the copy in evidence is a little indistinct but appears to be volume 497 folio 33. That certificate of title records the registration of the transfer on 8 July 1954 of a right of carriageway appurtenant to certificate of title volume 700 folio 60, now the Geappen land. The original title to Lot A was cancelled and it became folio of the register volume 2685 folio 99. By memorandum of transfer A713526 dated 27 August 1980, Mr Brown transferred Lot A to Christopher and Joan Gillies for the expressed consideration of $1,000. The title to Lot A was then transferred by Mr and Mrs Gillies to Darryl and Helen Howlin by transfer dated 15 July 2003 for the expressed consideration of $2,000.

2. It was only after Lot A was transferred to Mr Brown that he proceeded with the subdivision and began to transfer lots to purchasers. The transfers of lots in the subdivision make clear Mr Brown's intention to provide purchasers with access to Spitfarm Road by means of rights of way or rights of carriageway over the proposed roadway. However, that was not achieved in every case. I will deal with them in order of lot number rather than chronological order. In the context of the real property system it was appropriate to describe an area of land that was, or was to become, subject to a right of carriageway as a road or roadway, and by reference to it being distinguished on diagrams with green lines: Real Property Act 1886 ("the RPA 1886"), ss 26 and 27, the full terms of which are set out later in these reasons.

Lots 1 and 2 – Mr and Mrs Tapping

1. By Memorandum of Transfer to Leonard Hughes dated 20 July 1948, Mr Brown transferred Lot 1 "as the same is shown in the plan hereon endorsed and therein surrounded by red lines together with the right of carriage way over the area shown in the said plan and therein surrounded by green boundary lines". In the plans drawn on the transfer only Lot B of the "Proposed Roadway" is surrounded by green lines. The plan on the title issued to Mr Hughes includes only Lot B. The effect of the title issued to Mr Hughes is that he only received a right of carriageway over Lot B of the "Proposed Roadway".

2. By Memorandum of Transfer to Percy Verrell dated 15 January 1948, Mr Brown transferred "Lot 2 on subdivision plan by Mr Redvers Allan Terry filed in the office of the Recorder of Titles as the same is shown on the plan drawn hereon and therein surrounded with red boundary lines TOGETHER with a right of carriage way over the line [sic, line should be read land] shown in the said plan and hereon and in the said plan and hereon marked 'Proposed Roadway'". There is no plan shown on the transfer. The plan drawn on the title does not confine the "Proposed Roadway" to Lot A or Lot B and depicts all of it. The effect of the title issued to Mr Verrell is that he received a right of carriageway over all the land marked "Proposed Roadway".

3. The current title to Lots 1 and 2 on the diagram is comprised in folios of the register volume 62456 folios 1 and 2. Mr and Mrs Tapping are the registered proprietors. Mr Tapping gave unchallenged evidence that he and his wife bought the land in 1970. He produced a copy of the transfer which evidences that they became registered proprietors of both lots by transfer to them from Maxwell Harris dated 3 November 1970, registered 20 November 1970. The lots are together now known as 10 Marsh Street. The land in both titles fronts onto the Lot B portion of Marsh Street from the north. Registered on the title to Lot 1 is a benefiting easement, "a right of carriageway over the land marked 'Roadway' on D62456". Registered on the title to Lot 2 is a benefiting easement, "a right of carriageway over the land marked 'Proposed Roadway' on Diagram No 62456".

4. There is no ambiguity about the right of way benefitting the title to Lot 2. The terms and effect of the transfer creating the easement are consistent with the terms of the current title. However, for the reasons I have explained some ambiguity exists about whether the easement for Lot 1 described in folio of the register volume 62456 folio 1 extends over Lot A. The diagram D62456 does not include just the word "Roadway". It states the words "Proposed Roadway". The words "Proposed Roadway" extend in the diagram over both Lot A and Lot B, although the word "Roadway" appears only on Lot B. The word "Proposed" extends over both lots. I will refer to the ambiguity later in these reasons when discussing the issue of indefeasibility and the registration of the easement on the title of the dominant tenement.

Lot 4 – Mr and Mrs Griggs

1. By Memorandum of Transfer to Victor Marsh dated 18 November 1948, Mr Brown transferred Lot 4 "TOGETHER WITH a right of carriage way over the area shown in the said plan drawn hereon and marked proposed roadway." The description of the right originally read, after the word "hereon", the words "therein surrounded by green boundary lines", but was over written. The plan drawn on the transfer is not marked with any colour but covers the whole of the "Proposed Rdwy". The plan on the title issued to Mr Marsh depicts the whole of the "Proposed Roadway" and the effect is that he received a right of carriageway over all the "Proposed Roadway".

2. The current title to Lot 4 is comprised in folio of the register volume 62456 folio 4, and is now known as 4 Marsh Street. Mr and Mrs Griggs became registered proprietors on 3 April 2009. It fronts onto the Lot B portion of Marsh Street from the north. Registered on the title is a benefiting easement, "a right of carriageway over the land marked 'Proposed Roadway' on D62456". That is consistent with the creation of a right of way over both Lot A and Lot B.  

Lot 5 – Mr Atkins

1. By Memorandum of Transfer to Doreen Chamberlain dated 20 January 1947, Mr Brown transferred Lot 5 on subdivision plan 167/34 together with "a right of carriage way over the area shown in the said plan and drawn hereon and therein surrounded by green boundary lines". The plan drawn on the transfer did not confine the "Proposed Roadway" to Lot A or Lot B. The plan on the title issued to Mrs Chamberlain depicts all of the "Proposed Roadway". The effect is that Mrs Chamberlain received a right of carriageway over all the land marked "Proposed Roadway".

2. Mr Atkins owns 59 Spitfarm Road. He is the registered proprietor of the land now comprised and described in folio of the register volume 199983 folio 1. He gave unchallenged evidence that he and his wife became registered proprietors in 2007. Following his wife's death the title was transferred in his sole name on 8 February 2011. His land includes Lot 5 on the diagram. Before 2007 Lot 5 was adhered to the land with frontage onto Spitfarm Road and marked on the diagram as Lot 7 (not to be confused with the Lot 7 adjacent to Marsh Street). Thus, Mr Atkins' title now fronts onto Spitfarm Road and Lot A as well as Lot B.  Registered on Mr Atkins' title is a benefitting easement, "a right of carriageway (appurtenant to the land marked A. B. C. D. on Plan No 199983) over the Road shown on Plan No 199983". The plan referred to includes Lot A.

Lot 6 – Mr and Mrs McCormack

1. Lot 6, together with Lot 10 (including Lot B), was transferred by Mr Brown to Victor Wheeler by a Memorandum of Transfer dated 17 January 1951 as part of the land described in the transfer as the balance of the land described in folio of the register volume 455 folio 96. By reference to D62456 it comprised Lot 10 (the Geappen land), Lot B and Lot 6, and is marked on the diagram attached to the new certificate of title volume 637 folio 81. It encircled Lots 7, 8 and 9. The title issued to Mr Wheeler recorded that this land was "SUBJECT TO a right of carriage way for the registered proprietor of the several lots shown on diagram No 167/34 in my office over the land on the said diagram surrounded by a green line on the said diagram". This land was Lot B of the "Proposed Roadway".

1. Lot 6 was transferred back to Mr Brown by Victor Wheeler by a Memorandum of Transfer dated 29 September 1952. The transfer is of Lot 6 together with "a right of carriageway over the strip of land shown in the said plan No 167/34 and in the plan drawn hereon and therein marked 'proposed roadway' and surrounded by green boundary lines". The plan shown on the transfer depicts only Lot B.  The plan on the title issued to Mr Brown records that Lot 6 was "delineated in the diagram hereon and distinguished by a pink line TOGETHER WITH a right of carriage way over the strip of land marked 'proposed roadway' and shown surrounded by a green line on the said diagram". That diagram only had a green line around that part of the "Proposed Roadway" that is Lot B. On the title someone has overwritten that the right of carriageway is over the land marked "ABCD" on the diagram, but the result is the same. The effect of this title was that the registered proprietor only received a right of carriageway over Lot B.

2. The lack of provision for a right of way over Lot A benefitting Lot 6 may be explained by the fact that, both at the time of the transfer of the land including Lot 6 from Brown to Wheeler in 1951, and at the time of the transfer back of Lot 6 from Wheeler to Brown in 1952, Mr Brown was the registered proprietor of Lot A. It might be inferred that there was some agreement that Mr Wheeler would buy land from Mr Brown and transfer Lot 6 back to him. It follows that Mr Brown had no need to provide for a right of way to benefit Lot 6 over land he owned. On 8 July 1954 Mr Wheeler transferred the rest of his land to Mr Calvert, and at the same time Mr Brown, by memorandum of transfer of easement dated 8 July 1954, transferred an easement in favour of Mr Calvert over Lot A. That is the derivation of the easement over Lot A now benefitting the Geappen land. However when Mr Brown transferred Lot A to Christopher and Joan Gillies, then the owners of the Howlin land, for $1,000 in 1980, no provision was made for a right of way to benefit Lot 6.

3. The evidence does not disclose when and to whom Mr Brown transferred Lot 6 after 1954. The current title to Lot 6 is comprised in folio of the register volume 62456 folio 6. Mr and Mrs McCormack became registered proprietors on 11 March 2008. The title comprises Lot 6 on the diagram and is now known as 1 Marsh Street. It fronts onto the Lot B part of Marsh Street from the south. Registered on the title is a right of carriageway over Lot B, but no right of carriageway over Lot A is registered on Mr and Mrs McCormack's title.

Lot 8 – Mr and Mrs Clarkson

1. By Memorandum of Transfer to Lewis and Annie Walker dated 24 November 1948, Mr Brown transferred Lot 8 "as the same is shown in the plan hereon endorsed and therein surrounded by red lines TOGETHER WITH a right of carriage way over the line [sic, for line read land] shown on the said plan and therein surrounded by green boundary lines and marked 'Proposed Roadway'". There are no green surrounding lines visible on the transfer plan. However the area depicted as "Proposed Roadway" is Lot B, which is shaded in a different colour. The title describes the land transferred as being together with "a right of carriage way over the land in the said Diagram and herein surrounded by green boundary lines and marked 'Proposed Roadway'". The title plan depicts only Lot B which is surrounded by green boundary lines and noted as "Prop Roadway". As with the transfer of Lot 1, the plan on the transfer and the title only identifies Lot B as the "Proposed Roadway". The effect of the title issued to the Walkers is that they only received a right of carriageway over Lot B of the "Proposed Roadway".

2. The current title to Lot 8 is comprised in folio of the register volume 62456 folio 8, and is now known as 5 Marsh Street. Mr Clarkson gave unchallenged evidence that he became the registered proprietor on 3 October 1997. By transfer registered 15 July 2010 he transferred the title into the joint names of him and his wife and a new certificate of title was issued. The land fronts onto the Lot B part of Marsh Street from the south. Registered on the title is a benefiting easement, "a right of carriageway over the land marked 'Proposed Roadway' on D62456".

3. What I have said about the derivation of Mr and Mrs Clarkson's title is inconsistent with the terms of their present title. A benefitting easement, "a right of carriageway over the land marked 'Proposed Roadway' on D62456" describes, on its face, an easement which includes both Lot A and Lot B. An easement in the same terms was registered on the title transferred to Mr Clarkson in 1997. The difference between the terms of the transfer originally creating the right of way and the terms of the current title is not explained by the evidence. As with the ambiguity concerning the title to Lot 1, I will discuss this issue again when dealing with indefeasibility, the registration of the easement on the title of the dominant tenement.

Lot 9 – Mr and Mrs Cuppari

1. By Memorandum of Transfer to James Purden dated 31 October 1945 Mr Brown transferred "Lot 9 on a subdivision plan made by Mr Redvers Alan [sic] Terry filed herewith and being part of the land comprised in Certificate of Title Volume 455 Folio 96 TOGETHER WITH a right of way over the land marked 'Proposed Roadway' in the said plan …". There is an incomplete plan on the transfer but it does not limit the land subject to the right of way to either Lot A or Lot B. The title issued to Mr Purden describes the transferred land to be together with "a right of way over the land marked 'Proposed Roadway' shown on the said diagram hereon". The plan bears the words "Proposed Roadway" adjacent to the transferred land but does not limit it to Lot A or Lot B. The effect of the title issued to Mr Purden is that he received a right of way over all the "Proposed Roadway" on diagram 167/34.

2. The current title to Lot 9 is comprised in folio of the register volume 62456 folio 9 and is now known as 7 Marsh Street. Mr and Mrs Cuppari became the registered proprietors on 11 August 2000. It fronts onto the Lot B part of Marsh Street from the south. Registered on the title is a benefiting easement, "a Right of Way over the land marked 'Proposed Roadway' on D62456". That is consistent with the grant by transfer of a right of way over both Lot A and Lot B.

Lot 10 – the Geappen land

1. Lot 10, together with Lot B of the "Proposed Roadway", was transferred by Victor Wheeler to Geoffrey Calvert. His title records that this transfer was produced to the Recorder of Titles on 8 July 1954. By a transfer of easement produced to the Recorder of Titles on the same date, Mr Brown granted Mr Calvert a right of carriageway over Lot A of the "Proposed Roadway". This transaction is recorded on Mr Brown's title to Lot A, as well as Mr Calvert's title to Lot 10 and Lot B. The burden of this easement remains on the title to Lot A. That title was transferred to the defendant and his then wife Helen Howlin. That transfer was registered on 21 July 1999 and on 16 July 2014, was transferred to Ms Qin and Ms Shi. The right of way over Lot A benefits the Geappen land.

The Acts Interpretation Act 1931, s 16(1)(c) – rights accrued under the Real Property Act 1862

1. The plaintiff owners claim that they, or their predecessors in title, acquired or accrued a right to the benefit of a right of way under the RPA 1862, and that the right continued unaffected by the repeal of that Act by the LTA in 1981. The argument depends upon the operation of the Acts Interpretation Act 1931, s 16(1)(c), which provides that "where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not – … (c) affect any right … acquired, accrued, or incurred under any enactment so repealed". The plaintiffs must first establish an "accrued right" within the meaning of that provision, and secondly that the repeal of the RPA 1862 by the LTA does not "expressly provide" to the contrary. The "right" or "rights" claimed by the plaintiffs to have existed prior to the repeal of the RPA 1862 are described by them in the following terms. Counsel for the Council expresses the right in terms of a right, proprietary in nature, to the benefit of the express exception under s 40(b) of the RPA 1862 to the indefeasibility of the title of the dominant owners. That might, as I understand it, be otherwise expressed as the right of the registered proprietor of a dominant tenement to enjoy the benefit of the right of way registered on their title despite the absence of the registration of the easement on the title to Lot A. Counsel for the plaintiff owners makes the same submission, but goes a step further and refers to an accrued right to apply to the Recorder under the RPA 1862 for rectification of the register. Under the RPA 1862, s 136(1), the Recorder had power to summon a registered proprietor to produce a certificate of title for its cancellation or correction, including for correction of a misdescription of land or an erroneous entry.

2. At the time the instruments of transfer to the lot owners in Marsh Street were created, all of the relevant land, including Lot A, was registered under the RPA 1862. Under the RPA 1862 the Governor appointed a Recorder of Titles. The Recorder was empowered to bring land under the provisions of the RPA 1862 and issue a certificate of title to proprietors: s 20. The Recorder was required to keep a register book: s 31(1). The book contained duplicates of the certificates of title, each as a separate folio of the register: s 31(2). The Recorder was required to record on each folio of the book the particulars of all instruments and dealings required to be registered which affected the land described in the certificate of title: s 31(3). The certificate of title was, except as otherwise provided, conclusive evidence of the estate or interest of the registered proprietor: s 33(1) and (2). When registered land was intended to be transferred, or any right of way was intended to be created, the registered proprietor was to execute a memorandum of transfer in the required form describing the land to be transferred or the easement to be created: s 42. When an easement over registered land was created "for the purpose of being annexed to or used and enjoyed together with other [registered] land", the Recorder was to enter a memorial of the instrument creating the easement on the folio of the register for "such other land": s 43. Transfers of land and other instruments purporting to transfer or affect land were deemed to be registered under the provision of that Act when a memorial of the instrument was entered in the register book: s 34(2). Whenever a memorial of any instrument was entered in the register of the register book, the Recorder was required to record "the like memorial" on the certificate of title "evidencing title to the estate of interest intended to be dealt with, or in any way effected [sic], unless the Recorder shall, as hereinafter provided, dispense with the production of same": s 38(1).

3. The provisions of RPA 1886 are also relevant. It was also repealed in 1981 by the LTA, s 173 and Sch 2, but until then provided:

   "26  Certificate conclusive evidence as to easement therein specified. – Whenever any certificate of title, or any duplicate thereof, whenever registered or issued under any of the provisions or otherwise under the operation of the Principal Act 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 conclusive evidence that he is so entitled.

   27    Creation of right of way. – Whenever any transfer or any such certificate of title as aforesaid shall contain the words 'together with (or subject to, as the case may be) a right of carriage way over …', (specifying or describing the road or roads over which the easement is created, and referring to a diagram indorsed where on such road or roads is or are distinguished by a green line), such words shall have the same effect and shall be construed as if there had been inserted in such transfer or certificate the words contained in form II in the schedule.

   …

   FORM II

   (Section 27)

   CREATION OF RIGHT OF CARRIAGE WAY IN A TRANSFER OF FREEHOLD LAND

   TOGETHER with (or subject to, as the case may be) full and free right and liberty to and for the transferee hereunder, and to and for the registered proprietor or proprietors for the time being of the land hereby transferred, or any part thereof, and his, her, and their tenants, servants, agents, workmen, and visitors to go, pass, and repass at all times hereafter and for all purposes, and either with or without horses or other animals, carts, or other carriages, into and out of and from the said land, or any part thereof, through, over, and along the road or way, or several roads or ways, delineated and distinguished by a green line on the said diagram."

4. The Conveyancing and Law of Property Act 1884 ("the CLPA") provides for the creation of easements. The CLPA, s 34A, allows for use of certain short forms of words listed in Sch 8. The provision applied to land subject to the RPA 1862: the CLPA, s 91 and the fourth schedule. The term "right of carriageway" is one of the short forms of words and is taken as meaning in its full form:

   "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorized by him, to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof."

5. In the extracts I have referred to from the RPA 1886, I have emphasised by underlining the reference to distinguishing areas the subject of a right of carriageway by a green line because it affects the claim by the owners of Lot 6, and the claim by the owners of Lots 1 and 8. For the other owners, the easement over Lot A is described in the transfers of each of the lots. The transfer is a memorial stating the nature of the instrument to which it relates: s 37. Each of the transfers was entered in the register book for the certificate of title issued for the land with the use or enjoyment of the easement: s 43. The instrument purporting to affect the land of both the servient and dominant tenements was thus, in each case, deemed to be registered: s 34(2). The persons registered as taking the interest created by the transfer were, in each case, deemed to be the registered proprietors: s 34(3). The certificate of title issued to each transferee contained a statement to the effect that the person named was entitled to the easement. The statement in the title is conclusive evidence of the existence of the easement: the RPA 1886, s 26.

6. None of the easements over Lot A recorded on the titles of the dominant tenements were recorded on the folio of the register for Lot A, the servient tenement. In those circumstances, the RPA 1862, s 40, has effect. It provides that the estate or interest of the registered proprietor in registered land is held subject only to estates or interests notified on the register. However s 40 provides for three exceptions. The second of those exceptions is relevant to this case. It provides that the estate of the registered proprietor is free from all other interests except:

   "(b)  so far as regards the omission or mis-description of any [reservations, exceptions, conditions, and powers contained in the Crown grant of the land, or the interest of any tenant therein, or of any public or other] right of way or other easement created in or existing upon any land …".

7. According to its terms, for the exception in s 40(b) to have effect there must be:

   ·     an omission;

   ·     of a right of way;

   ·     created in or existing;

   ·     upon land. 

8. I return to Lot 6, and Lots 1 and 8. The argument advanced by the plaintiffs will not assist Mr and Mrs McCormack as the owners of Lot 6, because the easement over Lot A was neither transferred to their predecessors in title, nor recorded on their title. An easement was not created. Something which was not created cannot be omitted. Any application for correction of the register for Lot A by recording the existence of a right of way burdening that title in favour of Lot 6 would have failed because the omission of the right of way from Lot A was not a misdescription or erroneous. The registered proprietors of Lot 6 cannot have accrued any right under the RPA 1862 as claimed.

9. A similar difficulty attends the argument concerning Lots 1 and 8 but there is an important difference. By reference to the description of the area made subject to the registered easement in the transfers and titles issued to the purchasers of those lots at the time of the subdivision, neither had the benefit of the right of way extending over Lot A. The areas surrounded by green lines exclude Lot A. An easement was not created by the initial transfer. However I have concluded that the difficulty is overcome by the terms of the titles later issued for those two lots. The folios of the register for both of those two lots came to have rights of way over Lot A registered on them before the repeal of the RPA 1862 and the RPA 1886 and the commencement of the LTA. How that came to occur in light of the terms of the initial transfer is not explained by the evidence. When construing the terms of an easement that is registered under the Torrens system of title, rules of evidence assisting the construction of contracts between parties, of the nature explained by authorities such as Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350–352, do not apply: Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45, 233 CLR 528 at 539 [37]. Resort to extrinsic evidence to aid construction is not permitted. It is the language of the registered easement that is paramount when construing it. Unlike the terms of the original transfers creating the easements, the easement described in the titles in force immediately before the repeal of the RPA 1862 and the RPA 1886, in both cases, extends over Lot A. The title to Lot 1 has some ambiguity arising from use of the term "Road" rather than "Proposed Road", but could only be sensibly interpreted to extend over Lot A. The registered proprietors of those two lots thereby obtained the benefit of the evidentiary provision in the RPA 1886, s 26. The entitlement to the exception to indefeasibility under the RPA 1862 on which they rely depends on them establishing that the easement they claim to have been omitted from the servient title was created or existed over Lot A. In light of the principles I have just enunciated, registration of the easement is conclusive evidence of its existence. Once the easement came to be registered on the title to the dominant tenement it existed and thus fell within the terms of the exception to the indefeasibility, notwithstanding its omission from the servient title.

10. Thus, for Lots 1 and 8, and for each of the remaining lots except Lot 6, the combined effect of the provisions of the RPA 1862, the RPA 1886 and the CLPA to which I have referred, is that the rights of way for the benefit of purchasers from Mr Brown's subdivision to enable access and egress between each lot and Spitfarm Road were created in accordance with the statutory mechanism. Evans J came to the same conclusion in Clarence City Council v Howlin [2012] TASSC 26 which he expressed at [41]-[45], [48] and [50]. Crawford CJ expressed effectively the same conclusion in his reasons in the Full Court in 2010 at [45]. Whether or not the parties are bound by those determinations, I agree with them. The terms of the transfer refer to what are unarguably rights of way over land. The essential elements for creation of an easement exist. The exception to the indefeasibility of the title to the registered proprietors of Lot A provided for by the RPA 1886, s 40(b), meant that the persons who became registered proprietors for the time being of Lots 1, 2, 4, 5, 8 and 9 were not prevented from enjoying the rights of way, in terms of the extended meaning in Sch 8 of the CLPA and s 27 of the RPA 1886, over Lot A in the terms registered on their respective titles. To use the terms of s 40(b), those rights of way were easements created in or existing over Lot A. Each easement was created by registration: Registrar-General of New South Wales v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 74 at [115], a case in which the Court of Appeal of the Supreme Court of New South Wales considered legislation not materially different from the provisions of the RPA 1862 as they applied at the relevant time. For Lots 2, 4, 5 and 9 the registration took place at the time of the registration of the transfer and issue of the first title. For Lots 1 and 8 the easements came to exist when registered on later titles.

1. It is also, in each case, the "omission" of the easement from the estate of the registered proprietor of the servient tenement. The term "omission" means "left out" or "not there": Dobbie v Davidson (1991) 23 NSWLR 625; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11, 247 CLR 149 at 160 [23], Jea Holdings (Aust) Pty Ltd at [118]. It is the case of an omission regardless of what brought about the absence of the easement from the register for the title to Lot A. It follows that the existence of the rights of way, in terms of the RPA 1886 and the CLPA provisions to which I have referred, created by the registration of the transfers to the respective purchasers of the lots in Mr Brown's subdivision and recorded on the titles of the dominant tenements were an exception to the indefeasibility of the title of the registered proprietors of Lot A under the RPA 1862, s 40(b): Parramore v Duggan, per Toohey J at 646.

2. It is thus necessary to determine whether the exception to which I have referred is a "right" within the meaning of the Acts Interpretation Act, s 16(1)(c), and whether the right is affected by repeal of the RPA 1862 and the RPA 1886 by the LTA. Interpretation provisions in the terms of the Acts Interpretation Act, s 16(1)(c), have been considered in many cases. The provision preserves any right which is acquired or accrued under a repealed Act before its repeal. However, I have not been directed to, nor have my own researches located, any case considering the operation of the provision to land registered under the Torrens system. Section 16 was mentioned by the High Court in Parramore v Duggan but not dealt with. That is so for two main reasons. First, the argument based on s 16 had not been raised in the courts below, and the High Court felt constrained to deal only with the case stated. Secondly, the claimed right to an easement in that case derived from the general law and arose by grant before servient title became registered land, and thus was not a right accrued or acquired under a repealed Act. I would add that, in Parramore, the servient land was never subject to the RPA 1862, it being brought under the LTA in 1983.

3. Provisions such as s 16(1) exist to protect substantive rights. Many cases discuss whether rights to bring an action or application, for example for compensation or an allowance, constitute an accrued right: see for example rights to compensation in Hamilton Gell v White [1922] 2 KB 422 and Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291, the right to the hardship allowance in Chief Adjudication Officer v Maguire [1999] EWCA Civ 1060, 1 WLR 1778, or the land rights claim in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685. In that context, what is spoken of is an ascertainable right or entitlement defined by reference to past events. An analysis of the authorities was undertaken by the Court of Appeal of Western Australia in Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88, by the Court of Appeal in New South Wales in BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414, 82 NSWLR 336, and very recently by Brereton J in In the matter of Rocha Pty Limited (No 2) [2016] NSWSC 1172. None of the cases are particularly analogous to the circumstances of this case, and only general principles may be extracted. Something is required beyond a mere abstract right to take advantage of a section of an Act: Abbott v Minister for Lands [1895] AC 425 at 431. It is likely to be insufficient if the right exists for the public at large unless the person has taken some step to assert the right by the time of the repeal: Barminco at [20]. For that reason, the right to apply for rectification of titles is not an accrued right because no step had been taken to assert it.

4. I have concluded that the right to take advantage of an easement over Lot A, confined as it is to the particular owners of the titles with the benefitting registered easement created under the RPA 1862 and existing prior to its repeal, is a right within the operation of the Acts Interpretation Act. So far as it becomes necessary to establish, the evidence unequivocally shows that each of the owners actually exercised the right prior to repeal. The owners were entitled to enjoy the benefit of the right of way and were protected from an action in trespass brought by the registered proprietor of the servient tenement.

5. Counsel for the Recorder submitted that the right did not survive beyond the original transferees in whose favour the right was created. I have concluded that the submission should not be accepted. The right is not confined to the original transferees. It does not subsist pursuant to any personal right granted to the original transferee, but benefits the registered proprietors from time to time by force of the registration of the easement on the title to the dominant owners combined with the exception to indefeasibility under the RPA 1862, s 40(b). Refer also to the terms of the right described in the RPA 1886, Form II which refers to the registered proprietors for the time being, and the CLPA, Sch 8, which refers to every person who is at any time entitled to an estate or interest in the dominant tenement. Accordingly, reliance on the CLPA, s 6(1), is unnecessary. That section provides that the conveyance of any land is "deemed to include and shall by virtue of this Act operate to convey, with the land, all … easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof". The right to enjoyment of the easement exists not because the right is transferred. It is not a right personal to the transferee, but attaches to the title of the registered proprietor and operates as an exception to the indefeasibility of the servient tenement.

6. It follows that the accrued right which subsisted in the owners of each of the dominant tenements, except Lot 6, immediately prior to the repeal of the RPA 1862 is protected by s 16(1)(c) unless "the contrary is expressly provided" by the repeal provision.

7. By the LTA, s 173(1), the Acts listed in Sch 2 are repealed. The RPA 1862 is one of the listed Acts. Section 173(2) provides that "All lands, estates, and interests which at the proclaimed date are subject to any of the Acts repealed by subsection (1) shall be subject to this Act." Thus, on 1 October 1981, the lands, estates and interests subject to the RPA 1862, including the land subject to these actions, became subject to the LTA. The substance of the plaintiffs' contention is that these provisions do not expressly provide that their rights are not affected, and that the rights they claim survive the repeal of the RPA 1862 to their continuing benefit. I do not agree.

8. What may amount to express provision to the contrary is not explained by the Acts Interpretation Act. In interpreting that provision, and in eliciting whether an express contrary provision is to be found, the starting point is the ordinary grammatical sense of the text, with assistance to be gained from context and purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41, 239 CLR 27 per French CJ at 31 [4]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. The Court must determine what Parliament meant by the words it used, and not determine what Parliament intended to say. The duty of the courts is to give effect to Parliamentary intention, but only as it is expressed in the legislation: Harrison v Melhem (2008) 72 NSWLR 380 per Spigelman CJ at 384-385 [16], and Mason P at 398-399 [159]-[161].

9. I do not see that the provision could sensibly be read so as to require Parliament to identify every acquired or accrued right and address it in specific terms in a repealing Act. It would be impossible to identify every right which may or may not have been acquired or accrued under legislation and expressly address how it is or is not to be affected by the repeal. What is required is that the terms of the repealing Act, read as a whole, disclose a clearly expressed legislative intention that the claimed right does not continue beyond the repeal. In my view that intention clearly emerges from both the text and purpose of the LTA. It discloses the statutory intention in the clearest terms that the claimed rights accrued or acquired as exceptions to indefeasibility under the RPA 1862 do not continue. This appears firstly from the words of s 173(2). They state that from the proclaimed date the land subject to the repealed Acts "shall be subject to this Act". For land subject to the LTA, the title of a registered proprietor is subject to the terms of the LTA. The exceptions to indefeasibility are stated in the LTA. So far as is relevant to these actions, easements which are exceptions to the indefeasibility of the registered proprietor are stated in s 40(3)(e). Those exceptions, like other exceptions in s 40(3), have application not only to future events but also an existing state of affairs arising from past events. The provisions thus specify the circumstances which, though arising from events occurring before the LTA came into operation, constitute exceptions to the indefeasibility of land subject to the LTA. When the LTA came into effect Parliament did not include an exception to indefeasibility in terms of the exception in the RPA 1862, s 40(b). The exception in terms of that which previously existed under the RPA 1862, s 40(b), no longer exists. A registered proprietor of a dominant tenement subject to the LTA is no longer is entitled to the benefit of an exception in those terms.

10. To hold otherwise would substantially undermine the purpose of the Torrens system as embodied in the LTA and which has been so clearly and repeatedly enunciated by the High Court: Breskvar v Wall (above); Westfield Management Ltd v Perpetual Trustee Company Ltd at 531 [5], Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (above). The point was made in Queensland Premier Mines Pty Ltd v French [2007] HCA 53, 235 CLR 81 at 90 [14]:

    "One of the fundamental purposes of the Torrens system ... is to give effect to an important public policy. That policy is that the land title register should be sufficient of itself to inform those concerned about the nature and extent of any outstanding interest in relation to the land."

11. If the contention of the plaintiffs is correct, then the exceptions to the title of the registered proprietor are subject not only to registered interests and the exceptions expressly provided in the LTA, s 40(3), but also to other exceptions. It would be necessary for a third party to consider, for example, whether a state of affairs which may have constituted an exception to indefeasibility under the RPA 1862, but not under the LTA, may have given rise to an accrued or acquired right. The enquiry would extend not only to the registered proprietor at the time the LTA came into operation, but to any predecessor in title from whom the right may somehow have been transferred, for example by operation of the LTA, s 58(2) or an equivalent earlier provision.

12. The interpretation of the legislation which I have adopted is, in my view, supported by the amendment to s 91 of the CLPA, introduced by the Land Titles Amendment (Law Reform) Act 2001 as a consequential amendment commencing at the same time as the LTA, which excludes certain provisions of the CLPA, including ss 9A and 74 dealing with easements, from application to land held under the provisions of the LTA. Compare, for example, the contemporaneous consequential amendment to s 90A which expressly provides for the easements in gross provision to apply to land held under the LTA.

13. I have concluded that a right of the registered proprietors of the dominant tenements to enjoy the benefit of an easement not registered on title to the servient tenement under the RPA 1862 did not survive the repeal of that Act by the LTA on 1 October 1981.

The exceptions to indefeasibility in the LTA, s 40

1. 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: Parramore v Duggan, per Brennan J at 636. Section 106 of the LTA prevents collateral attack on the existence of the easement registered on the titles held by the plaintiff owners, but does not prevent reliance on s 40(2) which confers indefeasibility of title upon the registered proprietor of Lot A free from the easement: Parramore v Duggan, per Toohey J at 643 and the passage earlier quoted from Brennan J at 636.

2. The plaintiffs contend that the rights of way they claim fall within the exceptions to indefeasibility within the terms of the LTA, s 40(3)(e). Section 40(2) of the LTA expresses the indefeasibility of the title of a registered proprietor of land as subject to the exceptions in subs (3) and (4). Subsection (4) applies to leasehold estates and is not relevant. The LTA, s 40(3)(e), applies to easements. In contrast to s 40(b) of the RPA 1862, it does not create an exception to indefeasibility so far as regards the omission or misdescription of any right of way or other easement created in or existing upon any land. The exceptions in the LTA are expressed in substantially different terms.

3. The exception in s 40(3)(e)(i) concerns an easement arising by implication or under a statute which would have given rise to a legal interest if the servient land had not been registered land has application. This exception is not pleaded by the plaintiffs in either action as forming the basis of an exception to the indefeasibility of the servient title, and no submission was made to that effect. Nor has reliance on the exception in subpar (ib) been pleaded by the plaintiffs. It was not inserted into the LTA until 2012. It cannot have application because the claimed easement was not created under "this Act", being a reference to the LTA.

4. However, the plaintiffs contend that the exceptions in subpars (ia) and (ii) both have application, and I now turn to consideration of those provisions.

Section 40(3)(e)(ia) – unintentional omission from the Register

1. By s 40(3)(e)(ia), the title of a registered proprietor of land is not indefeasible so far as regards "an easement created by deed but unintentionally omitted from the folio of the Register for the servient land when that servient land was brought under this Act or the repealed Act". Whatever other conclusion is reached about the operation of the provision, this exception cannot assist the registered proprietors of Lots 6, 1 and 8. In the case of Lot 6 no easement over Lot A is registered on the dominant title, and there is no evidence of the creation of such an easement by deed or otherwise benefitting Lot 6 prior to the commencement of the LTA. For Lot 1 and Lot 8, despite the terms of the easements registered on the current certificates of title, the claimed easement over Lot A was not created by the transfers. There is no evidence of any other transfer or dealing creating an easement over Lot A benefitting either of those lots prior to the commencement of the LTA. Something which was not created by deed cannot be omitted, unintentionally or otherwise.

2. For each other lot, the transfers creating easements over Lot A were, in each case, registered dealings. When registered, a dealing has the effect of a deed duly executed by the parties who signed it: LTA s 48(7) and the RPA 1862, s 35(4). I also find that the easements were unintentionally omitted from the folio of the register for the servient land. The intention to create the easements unequivocally emerges from the terms of the transfers and the creation and registration of the easements on the title of the dominant tenements. Why the easements were not registered on the servient title is not explained by the evidence. Counsel for the Recorder submitted that there was no obligation, at the relevant time, for the Recorder to record the easements on the register for the servient tenement. That submission seems to me to be contrary the terms of the RPA 1862, s 38(1), although, in Parramore, Toohey J, without reference to s 38(1), concluded at 646 that the only obligation of the Recorder was to enter a memorial of the instrument on the folio of the register relating to the dominant land. There is no evidence of the Recorder dispensing with production of the servient title. Either way, however, the question is whether the omission occurred "when that servient land was brought under this Act or the repealed Act". The references to "this Act" and the "repealed Act" mean the LTA and the RPA 1862 respectively. The evidence establishes beyond doubt that the servient land had already been brought under the RPA 1862 when the omission occurred, and thus did not occur when the land was brought under that Act. The plaintiffs contend that the provision still operates however, because the omission occurred when the land was "brought under" the LTA. The submission contends that the land was not "brought under" the LTA until the commencement of the LTA and repeal of the RPA 1862 in 1980. As I have already explained, s 173 of the LTA repeals the RPA 1862 and provides that "All lands, estates, and interests which at the proclaimed date are subject to any of the Acts repealed by subsection (1) shall be subject to this Act." All of the land relevant to these actions thereby became "subject to" the LTA. The plaintiffs contend that this means the same as the land being "brought under" the LTA.

3. I do not think that s 40(3)(e)(ia) is to be interpreted in the way the plaintiffs contend. It was inserted into the LTA by the Land Titles Amendment (General Law Easements and Records) Act 1997. At the same time s 40(3A) was inserted. It provides that the application of subs (3)(e)(ia) extends to any land that was "brought under this Act or the repealed Act" before that amending Act commenced on 6 November 1997. The amendments were a response to the decision of the High Court in Parramore v Duggan. In that case the easement was created by grant before either the dominant or the servient tenement was brought under the Torrens legislation. The dominant tenement was brought under the RPA 1862 on 10 March 1980. The servient tenement was brought under the Torrens system on 11 April 1983, after the commencement of the LTA, but the title to the servient tenement made no mention of the easement. The context and purpose of the amendment make clear that it is intended to address the situation, as in Parramore, where an easement is created over land before the servient land is brought under the Torrens system, either under the RPA 1862 or the LTA. If land registered under the RPA 1862, is "brought under the Act" when the land became subject to the LTA in accordance with s 173, then the words "or the repealed Act" would be otiose. The phrase "brought under the Act" should be construed as having a meaning consistent with the use of the phrase elsewhere in the legislation. The interpretation I have adopted is consistent with the use of the phrase when used elsewhere in the RPA 1862 and the LTA. The phrase describes the process contemplated by an application under the RPA 1862, s 15, and dealt with under s 16, to "bring land under this Act". It applies to land not under the Torrens system becoming registered land; the creation of a folio of the register and issue of a duplicate certificate of title in accordance with ss 16(1)(a), 32 and 33. Part III of the LTA is entitled "Bringing Land Under the Act". Applications may be made by the persons specified in s 11, including a person claiming to be fee simple owner, and lodgement is required of the instruments constituting or in any way affecting the title of the land to which the application relates: s 11(3). Land may be also brought under the Act on registration of instruments under the Registration of Deeds Act 1935, s 17, on subdivision, ss 17 and 18, or at the instance of the Recorder, s 19. The Recorder may do or require to be done such things as will, in the Recorder's opinion, justify bringing the land to which an application under s 11 relates under the LTA and, subject to provisions unnecessary to detail here, may bring the land under this Act by creating a folio of the register for the land. Land becomes subject to the Act when the Recorder creates a folio of the register for it: s 33(7). It is obvious from the provisions I have referred to and the other provisions in Pt III that "bringing land under the Act" refers to the process whereby land not previously registered under the Torrens system is brought within it, and becomes registered land. The term is to be distinguished from the provisions of s 173 whereby the land becomes subject to the provisions of the LTA instead of being subject to the provisions of the RPA 1862.

1. None of the facts pleaded as having occurred in this case since the original transfers founds a claim in equity against the current registered proprietors of Lot A. The claim of the plaintiff owners to an equitable easement as an exception under s 40(3)(e)(ii) of the LTA to the indefeasibility of the current registered proprietors of Lot A fails.

Notice to Ms Qin and Ms Shi

1. Having regard to the finding that the plaintiff owners do not have the benefit of an equitable easement over Lot A, it is unnecessary to determine the issue of whether Ms Qin and Ms Shi were purchasers for value without notice of such an easement in the context of the LTA, s 40(3)(e)(ii). Nevertheless, I will make some observations and findings about the state of mind of Ms Qin and Ms Shi when considering, later in these reasons, the plaintiff owners' claim to a statutory right of user.

The claim to a statutory easement – CLPA, s 84J

1. The plaintiff owners seek, in the alternative, the grant of a statutory right of user pursuant to the CLPA, s 84J. That provision empowers the Court in the following terms to grant a statutory right of user over land:

   "(1)  Subject to this section, where the Supreme Court is satisfied that to facilitate the reasonable user of any land (in this section referred to as 'the dominant land') for some public or private purpose it is consistent with the public interest that a statutory right of user should be created over other land (in this section referred to as 'the servient land') it may, by order, impose upon the servient land, or on the owner for the time being thereof, an obligation of user or an obligation to permit the user of that land in accordance with the order."

2. An order shall not be made unless the Court is satisfied that the owner of the servient land can be adequately compensated in money for any loss or disadvantage they may suffer from the operation of the order: s 84J(3). The Court must then include provision for compensation in the order: s 84J(4).

3. Legislation for the creation of statutory rights of user exists in other States, but not in identical terms. For example, in Queensland the matters of which the court must be satisfied before making an order include that it is "reasonably necessary in the interests of effective use in any reasonable manner of any land" and "consistent with the public interest": Property Law Act 1974 (Qld), s 180. In New South Wales the requirements include that the easement is "reasonably necessary for the effective use or development of other land" and "use of the land having the benefit of the easement will not be inconsistent with the public interest": Conveyancing Act 1919 (NSW), s 88K. In Tasmania, what is required is that the Court must be satisfied that:

   (a)the creation of the proposed right is:

   i     consistent with the public interest;

   ii    to facilitate the reasonable user of land;

   iii   for some public or private purpose;

   (b)that the owner of the servient land can be adequately compensated in money for any loss or disadvantage; and

   (c)the Court should exercise its discretion to grant the right.

4. First a general remark. Applications for grant of a right under this provision should be approached with caution. The making of an order constitutes a compulsory change to registered property rights. This should not lightly be undertaken: Re Worthston Pty Ltd [1987] 1 Qd R 400; Ex parte Edwards Street Properties Pty Ltd [1977] Qd R 86 at 91; Durack v De Winton (1998) 9 BPR 16,403; Gittany v McDowell [2009] NSWSC 591. That is not to say however that the terms of the legislation should not be given their full effect.

5. I am in no doubt that this is an appropriate case for the creation of such a right. First, in contrast to legislation in other States which require the court to be satisfied that the grant of a right is "reasonably necessary", what I must be satisfied of according to the terms of s 84J is that the order should be made to "facilitate the reasonable user of any land". That is a reference to reasonable user of the dominant tenement. That is clearly demonstrated in this case. The land is, and has for many years been, used for private residences. It is in the "Village" zone under the applicable local government planning instrument. Use of land within that zone for a residential dwelling is consistent with the purpose and objectives of the zone. For a single dwelling it is a permitted use. For a residence other than a single dwelling an application for a discretionary permit is required. I think that, despite the combination of circumstances which leads to the conclusion that the current registered proprietors are not precluded from reliance on the indefeasibility of their title to Lot A, the subdivision of the land around Marsh Street has proceeded from the start with the common intention that the land be used for residences, and that access across Marsh Street should facilitate that use. Since the original subdivision the owners of all of the land have proceeded in accordance with that intention. Mr McCormack, Mr Clarkson, Mr Cuppari, Mr Tapping, Mr Griggs and Mr Atkins all gave unchallenged evidence that Marsh Street is, and has been throughout their respective ownership, the only means of access to their properties. All of the properties front onto the Geappen portion of Marsh Street. Mr McCormack and Mr Atkins thought, before they purchased the land, that Marsh Street was a public road. The others gave evidence that they thought they had a right of way over all of Marsh Street. Mr Clarkson's evidence was that his parents bought the property he later purchased from them in 1978. He remembers Marsh Street being used then as a road, but that not many people were living there at that stage. He said that Marsh Street has been used as access ever since. The geography of the area, as revealed by the evidence of the witnesses, the diagram and photographs, readily discloses why this is so. Without access through Marsh Street all of the properties, except for the property owned by Mr Atkins, are landlocked. None adjoin a public road and they are surrounded by privately owned land on all other sides. Marsh Street has also been used as access to the properties from Spitfarm Road for a very long time. There is a substantial and well established gravel road running in an almost straight line through the centre of Marsh Street between Spitfarm Road and the Howlin land. There is a grass verge between the edge of the roadway and the boundary of the properties on each side. There are houses on each property adjoining Marsh Street. The orientation of the houses and outbuildings (including garages) built on each property is consistent only with use of Marsh Street for access. The boundary between each of those lots and Marsh Street is fenced, but there are gates and driveways from Marsh Street onto each property and obvious evidence of constant vehicular traffic from the gravel road to the gates and driveways. Vehicles wishing to get to the various houses must travel over Marsh Street from Spitfarm Road. This includes not only occupants and visitors, but service vehicles such as for delivery of post and goods, collection of garbage and for construction and maintenance. The houses are serviced by septic tanks. Trucks and pumps for cleaning and maintenance of the septic tanks must travel over Marsh Street. A number of the plaintiff owners have contributed time and resources to repair and maintain the road over the years.

6. All of the plaintiff owners said that the services to their properties, including electric power and telephone and telecommunications and post are provided through Marsh Street. There are at least three hydro-electricity supply poles constructed on Marsh Street, which supply power to the residences. Two of the power poles carry street lighting. The telecommunications lines are underground. There has even been a street sign at the corner with Spitfarm Road which says "Marsh Street". The only inference that can reasonably be drawn from the evidence is that Marsh Street has been subject to uninterrupted, long-standing and continuous use as if it were a public street.

7. As to Mr Atkins, the land he later adhered to his lot has direct frontage to Spitfarm Road at the corner with Marsh Street. It is possible that he may obtain access to his property from there. However his house, the outbuildings, the garden and all of the services to his property have been constructed for access from Marsh Street. It will be difficult to get to his garage if his only access is from Spitfarm Road and he cannot cross Marsh Street.

8. Those same factors persuade me that the grant of a statutory right of user is consistent with the public interest. Being consistent with the public interest is not the same as being "in the public interest": Re Worthston Pty Ltd at 403. Here, no factor has been identified by the defendants as being inconsistent with the public interest. I can identify no such factor. I see it as consistent with the public interest to facilitate the continued use of land developed and used for residential purposes which, without an order, is landlocked.

9. The terms of s 84J do not, however, mandate the grant of a statutory right, even if the Court is satisfied of the matters specifically mentioned in s 84J(1). The Court "may" make an order. A discretion is thereby created. One of the factors relevant to exercise of the discretion is referred to in s 84J(3). An order is not to be made unless the Court is satisfied that the owner of the servient land can be adequately compensated in money for any loss or disadvantage. I think that, more generally, regard must also be had to the implications or consequences on the other land of imposing a right of user: Nelson v Calahorra Properties Pty Ltd [1985] Q Conv R 54-202 at 57,342; Re Hodgskin [1999] Q Conv R 54-535 at 60,386 [18]; Lang Parade Pty Ltd v Paluso [2005] QSC 112, [2006] 1 Qd R 42 at 47 [23]; Bradshaw v Griffiths [2016] QCA 20 at [44].

10. As I have already mentioned, Mr Howlin has been claiming for many years that Marsh Street is a public road. It is a proposition he forcefully advanced in these proceedings although it is irrelevant to the defence in both actions. The proposition must follow from his belief that Marsh Street is for access, not only to the Howlin land and the Geappen land, but for all of the land adjacent to Marsh Street. The status of Marsh Street is an issue with which Mr Howlin has been vitally interested since at least 2007, and it has occupied a considerable amount of his time and resources. There has been much litigation in courts and tribunals, including about costs orders made against him. When Mr Howlin first threatened to fence and gate Marsh Street in 2012 he was the still the registered proprietor of Lot A. The reference in his email at that time to the prospect that Marsh Street "is not found to be a public highway" is a reference to the proceedings then before Evans J. The inference that the prospect motivated his actions is overwhelming. The further correspondence in July 2014 to the Council and the owners threatening to block or restrict access unless they paid a large sum of money for a right of way was virtually contemporaneous with Mr Howlin's transfer of Lot A to Ms Qin and Ms Shi. It was only a few months after he had been refused special leave to appeal to the High Court against the decision of the Full Court in 2013 confirming Evans J's conclusion that Marsh Street was not a highway.

11. Mr Howlin and Ms Qin were married in November 2011. She began living at Highbury in the first part of 2012. Mr Howlin explained that when he and his wife were married she had limited English language skills, but that her ability to read and understand English has improved. She impressed me as an intelligent person, very loyal to her husband. I find that, over the course of their marriage, Mr Howlin has spoken to Ms Qin about the question of Marsh Street and conveyed to her his views about it. Mr Howlin must have been her principal, and probably only, source of information about Marsh Street. Ms Qin gave evidence that she discussed the issue of Marsh Street with her husband occasionally after she began living at Highbury in 2012. I find that, in light of Mr Howlin's high level of interest in the topic, it would have been a frequent subject of discussion. Ms Qin said that Mr Howlin told her that a right of way benefitting the Geappen land was registered over Lot A. She also gave evidence that her husband told her that the owners of the land along Marsh Street "have the right to go in and out from their house but they do not have the right to park on my land". She agreed that before July 2014 she knew that the owners claimed an easement to pass over the land. Ms Qin was, at the time Lot A was transferred to her, well aware that the owners of the properties adjacent to Marsh Street were in fact using Marsh Street for access. Their use of Marsh Street is plainly apparent to anyone who goes there. She used Marsh Street for her own access to the Howlin land.

12. It is of course to be remembered that Mr Howlin now has no interest in Lot A. He is not the registered proprietor and the Howlin land does not have the benefit of a right of way over it. However Lot A is already subject to a right of way benefitting the Geappen land.

13. The transfer document effecting the transfer of Lot A from Mr Howlin to Ms Qin and Ms Shi was handwritten by Mr Howlin. Mr Howlin agreed that the amount of consideration expressed in the transfer of $1,000 was a figure nominated by him. He said that the figure came from a valuation of Lot A of which he was aware, and that Ms Qin and Ms Shi had no input into determination of the amount. Mr Howlin said the sum was "paid in kind" although what he meant by that was not made entirely clear. Ms Qin's evidence about this varied somewhat from that of her husband. At one point she referred to the transfer as her husband's "gift to me and my daughter". She claimed that the amount of the consideration specified in the transfer was "her idea" and that she came up with it after a discussion with her husband's brother about whether it was "fair". She said it was never paid. Ms Qin agreed that she used Lot A only for access "to get in and out of my house" and that she had no intention to use the land for any other purpose. Whatever may be the correct situation, the evidence of the consideration for this and earlier transfers of Lot A discloses an appreciation by all those concerned with Lot A that its value is affected by the existence of easements restricting its use and development.

14. I have concluded that all of the circumstances strongly point to the conclusion that, for the most part, Ms Qin and Ms Shi, act in accordance with the wishes of Mr Howlin. I think it unlikely in the extreme that the correspondence to the Council and the other owners, and the construction of the fence and gate, were initiated by Ms Qin and Ms Shi. The pleadings in both actions were authored by Mr Howlin even though he is only a party to one of them. That inference emerges from what the pleadings reveal about the history of Mr Howlin's dispute with the Council over many years and the issues involved in the earlier litigation. I think that the approach of Ms Qin and Ms Shi in these actions, and the transfer of Lot A to them in 2014, were principally to advance the interests of Mr Howlin and his ability to develop the Howlin land. I see nothing in the grant of a statutory right of user over Lot A which will affect, one way or another, Mr Howlin's efforts to subdivide the Howlin land. Nor will it affect the property interests of any third party. The grant of a right will not, and is not likely to, affect any current or intended use or development of Lot A.

15. I have given careful consideration to the position of the other registered proprietor of Lot A, Ms Shi. Ms Shi has not lived in Tasmania although she visits from time to time from China. It was not claimed that she was unavailable to give evidence. She agreed to be bound by the result of the actions. It was open for her to give evidence that she could not be adequately compensated by money for the grant of a right to the plaintiff owners to use Lot A, or about any other matter relevant to the exercise of the Court's discretion. However, she did not. I would infer that she was not able to give evidence which assisted the defendants' case.

16. It is important to bear in mind that care needs to be exercised not to let the facts of this case influence the proper interpretation of s 84J. However, in all of the circumstances a statutory right of user in the nature of a right of way should be ordered in favour of the plaintiff owners.

17. The plaintiff owners also claim a service easement. The precise terms of the easement sought have not been specified. Such an easement will not be necessary to facilitate use of the right of way by their invitees. That will be covered by the terms of a right of way and will permit garbage pickup, Australia Post, visiting contractors and the like. However the existence of telecommunications and electricity infrastructure falls into a different category. Such infrastructure already exists. I will need to hear from the parties further before determining the need for and terms of an order about this aspect of the claim.

Interference with or obstruction of the right of way

1. Having determined that a statutory right of user should be granted, findings are required about the need for injunctive relief. It is inappropriate to consider declaratory relief in respect to interruption to a registered right of way to which, I have found, Lot A was not subject. Nevertheless, an injunction may be granted to protect and enforce a private statutory right such as a right ordered under s 84J. As I have said, I will order such a right. It is necessary to consider whether Mr Howlin's past acts, with which Ms Qin says she agrees, necessitate the grant of some form of injunctive relief against the threat of a future breach. That depends on my assessment of whether there is likely to be a future breach. In this case, damages are not an adequate remedy. If there is likely to be an actionable interruption to the right of way once ordered then an injunction should be granted.

2. A person entitled to a right of way may take action if the right is subject to a real and substantial obstruction: Pettey v Parsons [1914] 2 Ch 653. The question whether there is a substantial interference with the use and enjoyment of the right of way depends upon the facts and circumstances of the case: Stewart v Cooper A3/1986, [1986] TASSC 3, per Neasey J. It also depends on the terms of the easement: Krolczyk v Raffan A62/1991, [1991] TASSC 78. That latter issue is of course substantially affected by my finding that the plaintiff owners are not entitled to rely on the terms of the easement registered on the dominant titles. However, subject to what follows, I have concluded that the grant of the right should be over all of Lot A substantially in accordance with the terms of the easements registered on the titles of the dominant tenements and the easement registered over Lot A in favour of the Geappen land. That is, a right of carriageway over the whole of Lot A in the terms of the extended meaning provided by the CLPA, Sch 8:

   "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorized by him, to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof." 

3. Mr Howlin accepted in cross-examination, and I so find, that he told Ms Qin and Ms Shi that they were entitled to fence Marsh Street. Ms Qin said that she checked with Mr Howlin's brother, who is a lawyer, who also told her that they were entitled to fence Marsh Street. Ms Qin agreed with, or at least acquiesced in, Mr Howlin's conduct. Ms Qin said that she did not ever intend to lock the gate. Mr Howlin's correspondence clearly discloses an intention to lock the gate and provide a key to only Mr and Mrs Geappen. I accept the evidence of Mr Atkins that when he confronted Mr Howlin while the fence was being built that Mr Howlin told him that he was going to make his life difficult. Mr Howlin's correspondence to the owners and the Council maintained a need to fence and gate Lot A for occupational health and safety requirements and for security and protection. I do not accept that the statements are a genuine reflection of his true motivation. I am satisfied that Mr Howlin's construction of the fence was motivated by indignation arising from the result of court proceedings and a wish to obtain some tactical, strategic or financial advantage in his dealings with the Council and the plaintiff owners.

1. Despite these findings, I do not think it inappropriate or unreasonable, or that it will interfere unduly with the reasonable enjoyment of the right of way of the dominant tenements, for there to be some sort of fence to mark that Lot A is not public land. Marsh Street is not a public street. A limited fence would serve the purpose of discouraging persons from entering the land for a purpose unconnected with exercise of the right of way or use of the dominant tenements. Marsh Street, where it meets Spitfarm Road, is about 17 metres wide. The fence built by Mr Howlin is in the nature of a cyclone fence with cylindrical metal posts and top and bottom rails and with wire mesh. It appears from the photographs to be about 1200mm high, although it is difficult to judge with accuracy. It is not high or visually obtrusive. The fence extends in from the side boundaries towards a gate in the centre. The gate opening is 4.27 metres. The fence on each side is angled slightly away from Spitfarm Road so that the gate is set back into Lot A by what appears to be a metre or two. Given the nature and use of Marsh Street, a fence of some sort at each side of a driveway opening would not constitute a real or substantial interference with a right of way. It would not interfere with the reasonable user of the right of way, provided that there is reasonable access to the dominant land by the owners of the dominant land and persons authorised by them: Trewin v Felton [2007] NSWSC 851, 13 BPR 24,579 at [19]-[35], [43]-[45]; McCrow v Chaplin [2009] NSWSC 965. The right granted to the owner of the dominant land is no greater than is necessary for the proper enjoyment of the easement and ancillary purposes. In this case it is unnecessary for the owners of the servient tenements to be able to enter at any point across the whole of the boundary of Marsh Street and Spitfarm Road. The gravel road on Marsh Street does not extend across the whole width of Lot A. What is necessary, in my view, is that there is an entrance in a location coinciding with the made road of sufficient width to allow vehicles of all types consistent with residential use to enter and cross. That must allow for the ability to turn from and back onto Spitfarm Road given that Spitfarm Road itself is not very wide. Access should allow for boats, caravans and trailers, as well as for service vehicles such as fire service vehicles and the like. In my view the width of the opening should be greater than it presently is. Left as it is, it will be an unreasonable interference. Doing the best I can to judge for myself, I think that an unfenced portion of six metres is sufficient.

2. I have not overlooked that the right of way registered on the titles of the plaintiff owners is expressed to be over the whole of Lot A. That is not the right being enforced. What I am now considering is my grant of a statutory right. Nor have I overlooked that the right of way enjoyed by Mr and Mrs Geappen and registered on the servient title is expressed to be over the whole of Lot A. There is, according to the terms of their right, no restriction on where they may enter and cross Lot A. I do not purport to determine whether erection of a fence where Lot A meets Spitfarm Road amounts to an actionable interference with or obstruction of their right of way.

3. There remains the issue of a gate. In the circumstances of this case, a gate across Marsh Street is a real and substantial obstruction of a right of way in the terms I propose to order. Including the plaintiff owners, there are nine houses which rely on Marsh Street for access. The character of the neighbourhood is residential. The nature of the residential use of a property in a town is that the owners, visitors and invitees come and go from the property frequently. A gate, whether or not it is locked, will be an unreasonable interference. A gate is not necessary for the use of security of Lot A or any other land, including the Howlin land, and would serve no other purpose.

4. I have concluded that the conduct of Mr Howlin justifies the making of an order that he and Ms Qin and Ms Shi remove the gate and enough of the fence so that it complies with the terms of my order. Given the protracted history of litigation, his conduct in erecting the fence and gate was effectively an invitation to bring these proceedings. The obligation to comply will not be expensive or onerous. The fence and gate built on 10 September 2014 was installed by a contractor and by Mr Howlin with materials Mr Howlin said he already had. He gave evidence in cross-examination that he did not know how much it cost but he paid the contractor about $400. So far as I can judge from the photographs it does not appear to be an expensive fence and gate, and the process of construction would not have been difficult. The gate itself can be easily removed and will not be damaged. Removal of part of the fence will be a simple matter. I intend that my order will also restrain future interruption.

The standing of the Clarence City Council

1. These reasons have dealt principally with the action brought by the plaintiff owners. It is necessary to determine the result of the Council action in light of the findings I have made.

2. Ordinarily, only a party in occupation of possession of the dominant tenement is entitled to maintain an action for interference with a right of way: Inchbald v Robinson (1869) 4 Ch App 388; Hunter v Canary Wharf Ltd [1997] AC 655. Submissions were made by its counsel that the Council had standing to bring its action, notwithstanding that it holds no interest in either the dominant or servient tenement. The Council pleads that the construction of the fence and gate, and Mr Howlin's acts, constitute have or are likely to prevent the Council from:

   ·     "providing services and facilities to the owners and occupiers of lots 1-10 Marsh Street in discharge of its statutory functions and powers from time to time"; and

   ·     "exercising its statutory powers in respect of each of the lots at 1-10 Marsh Street."

3. It is unnecessary to determine the standing of the Council to bring the action because, in light of my findings, the Council's action cannot succeed. The Council's action for a declaration that the registered title to Lot A is not indefeasible must fail. The claim for injunctive relief depends on establishing interruption of a right to enter Lot A to perform its statutory function. That right must exist at the time its claimed cause of action accrued. The right of a Council enter land to perform its functions can derive from one of only two possible sources. The first is some statutory power. The other is by authority of a person entitled to give it.

4. One of the functions of a council under the Local Government Act 1993 is to "provide for the health, safety and welfare of the community": s 20(1)(a). By s 20(3), a council may "do anything necessary or convenient to perform its functions". Section 20A empowers the general manager of a council to authorise a person to enter land "for a specific purpose or in general". Exercise of the authority must, except in an emergency, be on notice to the owner. In this case there is no evidence of any authority given by the general manager of the Council to any person to enter Lot A or notice to the owner.

5. To the extent that the Council's action depends on exercise of a right to enter authorised by the owner of Lot A, or a person entitled to the benefit of an easement over Lot A, it cannot succeed. There is no evidence of express authority by the owners of Lot A. The evidence is to the contrary, thus excluding an implied authority. Nor can there be authority from the plaintiff owners on the basis of a right of way which Lot A was not subject to at the time the cause of action relied on by the Council is said to have arisen.

Conclusion and proposed orders

1. I summarise my conclusions as follows:

   ·     the title of the registered proprietors to Lot A is indefeasible;

   ·     the benefit of a right of way over Lot A which may have been acquired or accrued under the Real Property Act 1862 did not survive the repeal of that Act;

   ·     the right of way registered on the title of the plaintiff owners is not an exception to the indefeasibility of the title of the registered proprietors of Lot A;

   ·     the claim of the Council to declaratory and injunctive relief fails;

   ·     there should be a grant to the plaintiff owners of a statutory right of user under the Conveyancing and Law of Property Act 1884, s 84J, in the nature of a right of way burdening Lot A and benefitting the titles of the plaintiff owners;

   ·     there should be injunctive relief requiring removal of part of the fence constructed across Marsh Street and removal of the gate, and to protect the right from breach by obstruction or interference.

2. I will hear from the parties before making formal orders. There should be an order that action 823 of 2014 is dismissed. In action 1010 of 2014 I propose orders that:

   (a)there is imposed on the land comprised and described in folio of the register volume 2685 folio 99 ("the servient tenement") an obligation to permit the user of that land as a right of carriageway  appurtenant to the land comprised and described in folios of the register volume 62456 folios 1 and 2, volume 62456 folio 4, volume 62456 folio 6, volume 62456 folio 8 and volume 62456 folio 9, and that part of the land comprised in volume 199983 folio 1, marked ABCD on Plan 199983 ("the dominant tenements");

   (b)the plaintiffs will pay to the first and second defendants an amount by way of compensation for any loss or disadvantage they may suffer from operation of this order to be determined by this Court;

   (c)the first and second defendants remove the gate erected on the servient tenement, and so much of the fence erected on the servient tenement so as to leave an opening equidistant from the northern and southern boundaries of the servient tenement of at least six metres;

   (d)until further order, the first and second defendants and Darryl Robert Howlin are restrained from preventing, obstructing, interrupting or otherwise interfering with the plaintiffs' use and enjoyment of the right of carriageway.

3. I will hear the parties about the terms of the proposed orders and any further or consequential orders. I will also need to hear the parties about the determination of compensation and, as I have already said, the need for and terms of a statutory service easement.

4. I cannot conclude my reasons without making one brief but, I think, important final observation. Protracted litigation has generated much expense, delay and ill-feeling. It has continued for more than a decade. This is not the time for attribution of fault. I have little doubt that it is in the common interest that Marsh Street be developed in a manner which is acceptable to Mr Howlin and the Council, as well as Ms Qin and Ms Shi, and the other owners of land adjacent to Marsh Street. I would have thought that with goodwill, an open mind, realistic expectations and the willingness to make reasonable concession or compromise, resolution of the outstanding areas of disagreement can and should be reached.