Gurney v Hobart City Council

[2014] TASFC 9

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Gurney v Hobart City Council [2014] TASFC 9

PARTIES:  GURNEY, Chris
  v
  MURPHY, Daniel Jason
  HOBART CITY COUNCIL

FILE NO: 745/2013
JUDGMENT

APPEALED FROM: Gurney v Murphy [2013] TASSC 27

DELIVERED ON:  9 October 2014
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2014
JUDGMENT OF:  Tennent, Porter and Wood JJ

CATCHWORDS:

Real Property – Torrens Title – Easements – Creation – By plan of subdivision – Compliance with conditions in planning permit – Condition required plan to show "right of way" – Schedule of easements lodged created detailed limited right of access – Effect of general description of easement in final plan where description in schedule more detailed – Construction of condition.

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), s 87.
Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33; Lynch and Wright v Max Eaves Pty Ltd [1996] TASSC 2, referred to.
Aust Dig Real Property [1391]

REPRESENTATION:

Counsel:
             Appellant:  S McElwaine SC
             First Respondent:  No appearance
             Second Respondent:  D Morris
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             First Respondent  N/A
             Second Respondent:  Simmons Wolfhagen

Judgment Number: [2014] TASFC 9
Number of paragraphs: 59

Serial No 9/2014
File No 745/2013

CHRIS GURNEY v DANIEL JASON MURPHY
and HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

TENNENT J
PORTER J
WOOD J
9 October 2014

Order of the Court

Appeal dismissed.

Serial No 9/2014
File No 745/2013

CHRIS GURNEY v DANIEL JASON MURPHY
and HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

TENNENT J
9 October 2014

Outline

This appeal involves the approval of a subdivision plan by the Hobart City Council ("the Council") for a property at Ridgeway. The application for a planning permit for the subdivision was initially refused by the Council. As a result of an appeal by the property owner, Mr Murphy, to the Resource Management Planning and Appeal Tribunal ("the Tribunal"), the Council was directed to issue a planning permit subject to several conditions. A subdivision plan was subsequently sealed by the Council and registered by the Recorder of Titles.
Mr Gurney ("the appellant") opposed the grant of the planning permit in the Tribunal. Shortly after the registration of the plan, the appellant initiated an action in which he sought certain relief. In substance, he argued that the plan sealed by the Council was not in accordance with the planning permit issued by it, the Council had sealed a plan it should not have sealed, and that the subdivision was, as a consequence, irregular. The appellant was unsuccessful before a single judge and has appealed to this Court.

Factual background

Mr Murphy is the owner of a property at Hall Street, Ridgeway. By an application dated 28 September 2006, he applied to the Council for a planning permit to subdivide his property in accordance with his application. A report prepared by Inspiring Place accompanied the application. That report identified that the property, the subject of the application, was a 24.06 hectare bushland property bounded on the east by previously developed residential land, on the south and west by privately owned bushland, and on the north by the Ridgeway Reserve. A draft subdivision plan was part of the report. By reference to that plan, the proposal was to subdivide the property into four blocks, two of which were each to be a little under 10 hectares in size, one of which was to be 3.6 hectares in size and the fourth of which was to be 1.35 hectares in size. It was proposed dwellings would ultimately be built on each of the two larger blocks, that the 3.6 hectare block would be available for future development, and that the 1.35 hectares would be available as public open space. Reference was made in the report to the issue of public access to the Ridgeway Reserve.
On 13 August 2007, the Council, having received a number of representations, including one from the appellant, decided to refuse to grant the permit sought. On 28 August 2007, Mr Murphy appealed to the Tribunal. That appeal finally came on for hearing before the Tribunal on 11 June 2008. Prior to the hearing, Mr Murphy applied, pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the Tribunal Act"), s22(3), to amend the plan the subject of the appeal. By an order made 29 May 2008, the Tribunal allowed the amendment. At the hearing it emerged that there were further errors in relation to the plan and Mr Murphy was allowed to amend yet again. The Tribunal then went on to hear the appeal and, by a decision dated 17 June 2008, ordered the Council to issue a permit subject to a number of conditions. The amended plan the subject of the application determined by the Tribunal was that which is annexed hereto and marked "A".
The copy of the Tribunal's decision which appears in the Appeal Book starting at AB166 is not that issued following the hearing of the appeal. In its original form, condition 1 read:
"1.The use and development shall be substantially in accordance with the documents and drawings that comprise Exhibit A1 and tendered at the hearing of this matter before the Resource Management Planning Appeal Tribunal on 11^th June 2008. the Planning Application No. PLN-06-01018-01 as outlined in attachment A to this permit except where modified below."
The Council sought clarification of that condition shortly after the hearing. As a consequence, on 13 November 2008, the Tribunal amended the condition to delete all words after "11^th June 2008".
On 22 January 2013, following an application by the appellant, the Tribunal amended condition 1 yet again having realized that the amendment made to it in November 2008 did not serve to correct the substantive error in the condition as originally drawn. In a letter of that date, the Tribunal advised the parties as follows:
"The Tribunal was in error in failing to specify in Condition 1 that the use and development is to be substantially in accordance with the documents and drawings that comprise Exhibit A1 and tendered at the hearing as well as the documentation comprising the 'planning application No PLN-06-01018-01 as outlined in Attachment A to the permit except where modified below', as amended by the Tribunal order of 29^th May 2008. The Tribunal's failure to do so was the result of an accidental slip or omission. It is only proper to both acknowledge that error and correct it under section 23(5). There is an order accordingly."
Another condition in the planning permit relevant to these proceedings was condition 13. In its initial form, it provided as follows:
"13.A final survey plan be submitted showing the Right-of-Way extending from Hall Street over Lot 2 to the shared boundary with Council's Ridgeway Reserve, in favour of the Hobart City Council. The specification should be to the approval of the Director, Parks and Customer Services, which approval is not to be unreasonably withheld."
At AB188, there is a second version of the conditions in the planning permit. It purports to be a version as a result of a Tribunal decision made 1 December 2009. Condition 13 in that version refers in the second line to "Lot 1" and not "Lot 2". The parties were agreed at the hearing of this appeal that that was the final version of condition 13.
Once a planning permit issues to an owner of land, the owner must comply with certain provisions of the Local Government (Building and Miscellaneous Provisions) Act ("the Act") 1993. Part 3 deals with subdivisions. Section 80 is the definition section in that Part. The term "final plan" means a final plan referred to in s87. The term "plan of subdivision" means a plan submitted to a council for the purpose of a permit under the Land Use Planning and Approvals Act 1993 ("the LUPA Act") in relation to the subdivision of land. Section 81(1)(b) provides that an owner of land must not subdivide land except in accordance with a plan of subdivision which has been approved by the granting of a permit under the LUPA Act.
Section 87(1) then provides that, on receipt of council's approval of a plan of subdivision, the owner is to arrange for the preparation of a final plan by a surveyor in accordance with the requirements of the Recorder of Titles and any other requirement of an issued permit. Section 87(2) requires the owner to attach a schedule of easements to the final plan. Subsection (4) provides that the easements set out in the schedule of easements "are taken to" be shown on the final plan.
Section 88 provides that the owner is to lodge the final plan and the schedule of easements with the council. Section 89 deals with approval of final plans by the council. It provides that, if the council is satisfied that the final plan complies with Pt3 of the Act relating to subdivisions, the council is to seal the plan and lodge it with the Recorder of Titles.
In or about April 2012, the first respondent caused a plan to be prepared by a surveyor and lodged with the Council. That plan had a schedule of easements attached to it. Annexure "B" to these reasons is a copy of that plan. There is no dispute that plan was intended by Mr Murphy to be a final plan by reference to s87(1). That plan was later sealed by the Council and lodged with the Recorder of Titles. On 17 May 2012, the Recorder of Titles accepted the plan and issued titles.
The schedule of easements with that plan relevantly provided as follows:
"…
Lot 2 on the Plan is together with rights of carriageway over Right of Way C Variable Width forming part of Lot 1 shown on the Plan.
Lot 1 on the Plan is subject to a right of carriageway (appurtenant to Lot 2 on the Plan) over the Right of Way C Variable Width forming part of Lot 1 shown on the Plan.
Lot 1 on the Plan is subject to a Right of Access (in favour of the Hobart City Council) over Right of Way C Variable Width shown on the Plan.
…
'Right of Access' means:
(1)The right for the employees of the City of Hobart and contractors engaged by the City of Hobart :
(a)To pass across the lot burdened but only within the site of this easement for the purpose of exercising or performing any of its powers, authorities, duties or functions ;
(b)To do anything reasonably necessary for passing across the easement including entering the easement, taking anything onto the easement; and
(c)Carrying out work within the site of the easement such as maintaining trafficable surfaces.
(2)       In exercising those powers the City of Hobart must:
(a)       Ensure all works are done properly;
(b)Cause as little inconvenience as is practicable to the owner or any occupier of the lot burdened;
(c)Cause as little damage as is practicable to the lot burdened and any improvements on it;
(d)       Make good any damage caused to the lot burdened; and
(e)Make good any collateral damage.
(3)For the avoidance of doubt the Right of Access does not extend to members of the public having access to the easement.
…"
It is apparent from the content of the recited parts of the schedule of easements that the Council was specifically granted a right of access over the area marked "Right of Way C Variable Width (Private)" for defined purposes, and that that right of access did not extend to members of the public.
On 13 June 2012, the appellant filed a writ, attached to which was a statement of claim. The trial in respect of the action commenced by that writ ultimately proceeded by reference to an amended statement of claim which appears to have been filed 30 January 2013. By that statement of claim, the appellant sought the following relief:
"(a)A declaration that the final plan of subdivision does not comply with the requirements of the planning permit;
(b)A declaration that the second defendant had no power to cause its seal to be affixed to the final plan of subdivision and to cause it to be lodged with the Recorder of Titles pursuant to section 89 of the Local Government (Building & Miscellaneous Provisions) Act 1993;
(c)An injunction restraining the first defendant from selling, transferring, charging or assigning any of the lots comprised in Certificates of Title Volumes 157815 Folios 1-5 inclusive unless and until the first defendant has complied with the next following order;
(d)A mandatory injunction requiring the first defendant to prepare an amended plan of subdivision which is consistent with the requirements of the planning permit and to take such steps as may be necessary or authorised by law to have that plan of subdivision sealed by the second defendant and for the second defendant to take such steps as may be required by law to seal such amended plan of subdivision and then in turn to have the Recorder of Titles amend the register in accordance with it;
… ."
The proceedings commenced by that writ were dismissed following a decision of the Chief Justice published 19 June 2013 (Gurney v Murphy [2013] TASSC 27). The appellant now appeals that decision.

Grounds of appeal

The grounds of appeal are as follows:
"The grounds of appeal are that His Honour:
(a)erred in his characterisation, and thereby his determination, of the plaintiff's claim as one which contended for the grant of a right of way in favour of the Hobart City Council so as to permit members of the public to travel over the servient land;
(b)erred in his characterisation, and thereby his determination of the plaintiff's claim, as based on a construction of the planning permit granted by the Resource Management & Planning Appeal Tribunal as requiring that provision be made for a right of way granted to the Hobart City Council for the public to be permitted to pass over the servient land;
(c)failed to determine the plaintiff's claim upon the basis pleaded by him in the action, namely that upon a proper construction of the planning permit granted by the Resource Management & Planning Appeal Tribunal, the first respondent was required to provide a right of way in favour of the Hobart City Council without limitation as to its use;
(d)erred in that he construed the planning permit granted by the Resource Management & Planning Appeal Tribunal as enabling an officer of the Hobart City Council to determine the scope of the right of way required, inconsistently with the terms of the planning permit."
Mr Murphy, the property owner, named as the first respondent in this appeal, has submitted to the jurisdiction of the Court and has taken no part in the appeal.

Ground of appeal (a)

In substance the appellant's argument about this ground was that the Chief Justice did not address the appellant's pleaded claim and misinterpreted what that claim was. Counsel referred to what the Chief Justice said at [4] of his decision about the appellant's case:
"He does not contend that the tribunal's decision required the public to be permitted to pass and re-pass over the land that is the subject of the right of way. That would have involved the track in question being dedicated as a public highway, but there is no suggestion that the tribunal required that. The plaintiff contends only that the tribunal's decision required a grant of a right of way in favour of the council by which the council was to be given the power to permit members of the public to travel over the servient land."
It was the last sentence with which issue was primarily taken.
Paragraph 2.2 of the appellant's statement of claim was as follows:
"2.2 Properly construed the reference to the Right-of-Way in the planning permit;
(a)is a reference to a right of carriageway as defined at schedule 8 of the Conveyancing and Law of Property Act 1884; or
(b)is a reference to a right of footway as defined at schedule 8 of the Conveyancing and Law of Property Act 1884; or
(c)is a general right of way, in favour of the Hobart City Council, but without limitation as to use."
At the hearing of the appeal, only the contention in par2.2(c) was pressed. Counsel for the appellant submitted that the appellant's case was that the reference to the "Right-of-Way" in the planning permit was a reference to a general right of way in favour of the Council without any limitation as to use. The appellant did not ever contend, consistent with his pleadings, that there should have been a right of way which contained an express requirement that the Council permit public access over it.
Counsel submitted that the Chief Justice compounded the error by, at [12], [20] and [22], characterizing the appellant's case as follows:
"[12] … He contends that it is clear from that material (the documentation referred to in condition 1) that it was intended that provision was to be made for the public to be permitted to pass over the track that is the subject of the right of way.
…
[20] … It follows that the relevant documents do not support the plaintiff's contention that it was intended that provision was to be made for the public to be permitted to pass over the track that is the subject of the right of way.
…
[22] The plaintiff has failed to establish that the tribunal's decision required the terms of the easement to confer on the council a power to permit the public to pass over the servient land."
Counsel for the appellant submitted that what his Honour failed to do was consider the material case pleaded by the appellant at trial, and thus constructively failed to exercise his jurisdiction to resolve the controversy between the parties. For that submission, counsel relied on the words of Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]. The court in that case was dealing with an appeal which raised an issue about the inadequacy of the trial judge's reasons and an assertion that she had failed to make findings as to critical facts. At the hearing of the appeal, counsel for the appellant raised a further matter which was that the trial judge had constructively failed to exercise jurisdiction by failing to take into account material and uncontested evidence. Mr McElwaine referred to specific parts of [9]. However, it is useful to look at what Basten JA said at [8] and [9] on the subject under consideration, rather than simply the words referred to. He said:
"8. The belated formulation of this ground appears to have owed something to the reasoning of this Court in Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]- [24]. In particular, the grounds picked up the language of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] that '[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice'. Similar language was adopted by the Full Court of the Federal Court (North, Logan and Robertson JJ) in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 289 ALR 244. The Full Court stated at [5], that the Tribunal, by simply adopting one party's submissions as it reasons, 'had failed to bring its own mind to bear on the issues before it and thus ... had constructively failed to exercise its jurisdiction': see also at [91].
9.The adoption, on an appeal limited to errors in point of law, of language derived from the supervisory jurisdiction of the court must be undertaken with caution. It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. Examples of circumstances which may properly give rise to a concern on this kind were referred to by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]. On occasion, the function of the decision-maker (which should include a court) has been identified as being to 'give proper, genuine and realistic consideration to the merits of the case': Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 (Gummow J). (The language probably derived from its use in equity to describe the proper exercise by a trustee of a discretionary power in relation to the trust.) Although the nature of the exercise, particularly with respect to discretionary powers, involves no bright-line boundary, care must be taken that the statutory mandate of the appellate court, limited to errors of law, is not breached by adopting as a standard inherently value laden language: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30]."

Counsel for the respondent did not specifically address either this ground of appeal or the submission by reference to the remarks of Basten JA. In his written submissions however he submitted that the appellant's case was "framed around, and, for its success, relied fundamentally upon a construction argument concerning condition 13 of the permit. Having regard to the plaintiff's case as framed by the pleadings and as argued at trial, and the defence, the Trial Judge was correct .. ". In essence, counsel for the Council argued that the issue between the parties was the construction of conditions 1 and 13 in the planning permit, and the Chief Justice dealt with that issue, resolving it in favour of the respondent.
There can be little argument that, if regard is had to the specific sentences to which counsel for the appellant refers, the learned Chief Justice phrased his reasons in a manner which did not specifically address the appellant's claim as pleaded. Clearly if a trial judge misunderstands the case for a plaintiff and does not deal with the substance of the plaintiff's case, there would be scope for finding error on the part of the trial judge.
In the present case, the Chief Justice focussed on determining whether there was anything in the documents to which the Tribunal had regard which could satisfy him that the Tribunal's decision required the terms of any easement granted in favour of the Council to contain a power to permit the public to pass over the right of way. He found that there was not, and concluded that the appellant had failed to establish there was and therefore the action should be dismissed. The appellant's pleaded claim in par2.2 did not assert there was any such material and did not assert that there should have been a right of way with such a power. The pleading focussed on what the words in the permit, "Right-of-Way", meant. To that extent, his Honour did not address the appellant's pleaded claim and I would accept that his Honour made an error in the way he approached the appellant's claim.

Grounds of appeal (b), (c) and (d)

These grounds may conveniently be dealt with together because in effect they all relate to an argument about the construction of the terms of the permit.
Counsel for the appellant contended that the terms of the permit were informed by, apart from anything else, the plan which is annexure A to these reasons. That plan referred to a "Right of Way 10.00m wide" and had a note to the effect that "R.O.W 10.00m wide in favour of Lot 2 and Hobart City Council". The permit which followed required that a right of way be included in the final plan running from the Hall Street boundary to the boundary of the Ridgeway Reserve. Neither the proposal plan nor the permit conditions included any requirement that such a right of way be limited in any way.
Counsel for the appellant took no issue with the principles of construction outlined by the learned Chief Justice at [13] of his reasons. His Honour's approach took him to consider a report prepared by Inspiring Place which was lodged with the Council when the planning permit was initially sought. He looked in that report for anything which might have informed the intention of the Tribunal in relation to any right of public access over Mr Murphy's land when it directed the Council to issue a permit. The report referred in four places to the issue of public access to the Ridgeway Reserve. The Chief Justice dealt with these references at [14] to [20] in his reasons. His Honour concluded at [20]:
"Nowhere in any of the relevant documents is there any reference to a proposal that public access along an existing track is to be anything greater than a possibility which, because of the possible adoption of an alternative route through the public open space, might not come to pass."
However, as counsel for the appellant pointed out, that conclusion did not really assist with a determination of the pleaded issues.
Counsel for the appellant submitted that the right of way, referred to in the proposal plan (annexure A) and the permit, was an unrestricted right of way. He submitted there was nothing in those documents by which it could be said any restriction was placed on the grant. He referred to remarks at 307 of the text, Gale on Easements, 15^th ed 1986, where the learned author said:
"When the grant is in general terms, and there are no circumstances subsisting at the date of the grant and nothing in the grant itself, sufficient to point in an opposite direction, a way may be used, with the authority of the person entitled to possession of the dominant tenement, by anyone whose user is not inconsistent with the quantity and purpose of the user envisaged by the grant."
I did not understand counsel for the Council to argue with the legal proposition outlined in the text. However, the interpretation of these remarks by counsel for the appellant presupposes that the "grant" in this case is confined to the words in the final plan absent anything in the schedule of easements.
Counsel for the appellant's contention was that, since the proposal plan and the permit did not limit in any way the benefit to be granted to the Council, the final plan as sealed, in placing a restriction on use of the area shown as right of way, was not a plan approved by the permit and, therefore, should never have been sealed. Counsel for the appellant submitted that, by reference to the statutory scheme contained in the Act, ss87(1) and 88, once a plan of subdivision had been approved (in this case the plan which is annexure A):
-     the owner had to arrange for a final plan to be prepared;
- that final plan had to be in accordance with any requirements of the Recorder of Titles, and, more importantly, "any other requirement of a permit issued under" the LUPA Act (there is no dispute the permit issued in June 2008 was such a permit);
-     the owner had to attach a schedule of easements to the final plan;
-     the easements set out in the schedule were taken to be shown on the final plan; and
-     the owner was to lodge the final plan and the schedule of easements with the Council.
The Act, s89, provided that, if satisfied the final plan complied with Pt 3, the Council was to seal the plan. Counsel submitted that the Council in this case could not have been so satisfied because the plan it sealed was not a final plan. To be a final plan, it needed to be in accordance with the proposal plan and the permit. Condition 13 required the grant of a right of way without restriction and the plan submitted as the final plan did not comply with that condition.
The interpretation of condition 13 is pivotal to the argument. Counsel for the appellant submitted that, having regard to the proposal plan (annexure A), what was approved by the Tribunal and evidenced by the permit conditions was that there was to be a general right of way in favour of the Council with no restrictions. This was clear from the words which appeared on the plan.
Counsel for the Council submitted that the interpretation of condition 13 was not confined to a consideration of the proposal plan and the wording of the condition itself. What was also relevant was the law and practice relating to the creation of easements, both of which would have been well known to the Tribunal. As his Honour correctly stated at [5], the easement created in favour of the Council was an easement in gross created by reference to the Conveyancing and Law of Property Act 1884, s90A, because there was no dominant tenement. There was no dominant tenement because the Council did not own the land which adjoined Mr Murphy's land.
Counsel for the Council submitted that to create an easement, two things were required. These were the final plan which depicted where an easement was to be, and the schedule of easements which set out the scope of the easement depicted on the plan. Parties were entitled to determine, without restriction, the scope of the grant: see Bradbrook & Neave's Easements and Restrictive Covenants, 3^rd ed 2011, at [6.4]. In this case, compliance with condition 13 was achieved by simply showing a right of way on a final plan. That is what condition 13 required, nothing more. Hence, the plan which Mr Murphy lodged as a final plan did comply with the proposal plan and permit, and was, as a consequence, the final plan for the purpose of the Act, s87.
Counsel for the Council made a number of further submissions. He submitted that the description "right of way" on a plan simply allowed for the identification of the easement to which a schedule of easements referred. Further, the use of the word "Private", which appeared on the plan in this case, was necessary having regard to the requirements of the Act, s95(1). That provided:
"(1) Any land which is shown on a sealed plan as a road, street, alley, lane, court, terrace, footpath or other kind of way is taken to be dedicated to, and accepted by, the public unless called 'private' on the plan."
There was no suggestion in this case that the right of way being considered was intended to be dedicated to and accepted by the public.
As counsel for the Council also pointed out, these principles concerning the creation of easements were not displaced where the easement was one in gross created pursuant to the Conveyancing and Law of Property Act. He submitted that the appellant's case could only succeed if condition 13 were construed to displace the right of the Council and Mr Murphy to determine the extent and scope of the rights to be conferred over the right of way depicted on the plan.
Counsel for the Council referred to a decision of Crawford J (as he then was) in Lynch and Wright v Max Eaves Pty Ltd [1996] TASSC 2. The case involved an argument about whether a particular easement existed. At [57] and [58], his Honour recited the facts of that case. Those facts included a description of a plan with the words "RIGHT OF WAY (PRIVATE) 18.00 M WIDE" only on it, and a schedule of easements which had a much wider description of the nature of the user in it. Counsel for the Council submitted that the content of the plan and schedule referred to by his Honour was illustrative of the process relating to the creation of easements in this State.
Counsel for the appellant, while not directly suggesting that the method of creation of easements outlined by counsel for the Council was wrong, submitted that any notion that a landowner could subdivide "willy nilly", as he put it, was displaced by the statutory scheme. That statutory scheme required that certain steps be taken and in particular, that where a final plan and schedule of easements were submitted, "the easements … set out in the schedule of easements are taken to be shown on the final plan": see the Act, s87(4). Counsel for the appellant did not explain why he asserted that the wording of s87(4) somehow put paid to the argument of counsel for the Council. He simply stated that they did.
With respect, to suggest that the present case was one in which Mr Murphy had been allowed to somehow subdivide "willy nilly" without regard to the statutory scheme was, in my view, dramatically overstating the situation. The Act, s87(4), simply made clear that, whatever is shown in the schedule of easements, was taken to be shown on the final plan. It does not in my view have any effect on the principles outlined by counsel for the Council.
As I have said before, the issue is clearly the construction of condition 13. Many of the principles and authorities referred to by counsel for the appellant may very well be correct. However, they only impact on the decision of this Court if the construction for which the appellant contends is accepted. I do not accept that construction.
The proposal plan contained the words "Right of Way 10.00m Wide" and a notation that it was in favour of Lot 2 and the Hobart City Council. That plan showed a proposed right of way extending from Hall Street over Lot 1 to the shared boundary with the Ridgeway Reserve, the shared boundary actually being with Crown land and not Council land. Condition 13 required that a final survey plan be submitted "showing" the right of way "extending from Hall Street over Lot 1 to the shared boundary with Council's Ridgeway Reserve, in favour of the Hobart City Council". It further provided that the specification should be to the approval of the Director, Parks and Customer Services, which approval is not to be unreasonably withheld.
In large part therefore, condition 13 simply described in written form what was depicted on the proposal plan.
Condition 1 in the permit provided that the use and development was to be in accordance with various documents. One of those was clearly the proposal plan, but they also included the material lodged in support of the application. That material outlined Mr Murphy's proposals. In particular at 3 (AB51), it provided:
"In support of this development, the Proponents also propose to:
Maintain public access to the Ridgeway Reserve from Hall Street in consultation with Council (this could be achieved via rehabilitating the existing fire trail, and converting it to a shared walking and cycling track, or alternatively constructing a purpose built shared track, and rehabilitating the existing fire trail);
Construct a paved access road/driveway, branching off the existing fire trail, to service both 10ha lots – the road is intended to continue past the residences, linking with existing fire trails in the Ridgeway Reserve to maintain access for fire fighting purposes;"
Further at 27 (AB76) in chapter 3 of the material dealing with fire management, there is commentary about access for fire fighting purposes. Pedestrian and fire management access was proposed through the existing fire trails or a purpose built track through that area proposed as public open space.
It is clear from this material that the proponents for the planning permit needed to create a right of way to deal with access for Lots 1 and 2, and that they also needed to address fire fighting issues in some way or another. It was also apparent that consideration had been given to, in some way, providing for continued pedestrian access to the Ridgeway reserve from Hall Street. One of the options to provide both pedestrian and fire fighting access was through what was proposed as a public open space area which also bordered the reserve. There is nothing whatsoever in the Tribunal's decision which resulted in the permit to indicate which particular option the Tribunal required. The closing words of condition 13 suggest in my view that what the Tribunal intended was to leave it effectively to the parties to determine.
Another factor to be considered is that it must be accepted that the scope of the right of way in favour of each of Lot 2 and the Council had to be different. It was self-evident that the scope of the right of way to benefit Lot 2 was a private benefit to give the owners of that lot a means of access over the right of way to their lot, and not one ever intended for public access. It was described in the schedule of easements as a "right of carriageway" by reference to the Conveyancing and Law of Property Act 1884, Sch 8.
As far as the Council was concerned, any right of way could only be an easement in gross because the Council did not own the adjoining land. That easement in gross related to the Council obtaining a benefit in respect of the area described as the right of way. That was not a benefit appurtenant to any other land it owned. It was for the Council to determine in consultation with the proponents of the development, within the confines of the proposal, what the scope of the benefit would be.

Outcome

It follows from the views that I have expressed above that, in respect of his appeal, the appellant should succeed in respect of ground (a), but fail in respect of all other grounds.
The consequence of the findings I have made however is that, even addressing the appellant's claim as pleaded, it must fail.

ANNEXURE A

ANNEXURE B

File No 745/2013

CHRIS GURNEY v DANIEL JASON MURPHY
and HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

PORTER J
9 October 2014

I have had the advantage of reading the draft reasons for judgment of Tennent J.
For the reasons which her Honour has given, I agree that the trial judge erred in the way in which he characterised and approached the appellant's claim. I also agree that properly characterised, the appellant's claim must fail in any event, and that the appeal should be dismissed. I generally agree with Tennent J's reasons for this outcome.
The appellant's contention that the permit only authorised and required the grant of a right of way in favour of the Council without limitation is untenable. It is convenient to set out condition 13 of the permit as ultimately settled by the Resource Management and Planning Appeal Tribunal:
"13A final survey plan be submitted showing the Right-of-Way extending from Hall Street over Lot 1 to the shared boundary with Council's Ridgeway Reserve, in favour of the Hobart City Council. The specification should be to the approval of the Director, Parks and Customer Services, which approval is not to be unreasonably withheld."
It is, of course, possible to grant a "right of way" in those terms and without more: see Canon v Villars (1878) 8 Ch D 415 at 420, and generally Gale on Easements, 15^th ed 1986 at 292-293 and Bradbrook & Neave's Easements and Restrictive Covenants, 3^rd ed 2011 at [6.4] 168. In the case of the Torrens system, the extent and mode of enjoyment of the easement is to be construed from the registered documents along with the physical characteristics of the benefited and burdened parcels of land: Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [15]–[16].
Condition 13 must be read as a whole. Section 87(1)(b) of the Local Government (Building and Miscellaneous Provisions) Act 1993 ( the Act) requires the owner, on receipt of approval of a plan of subdivision, to arrange for the preparation of a final plan in accordance with any requirement of a permit issued under the Land Use Planning and Approvals Act 1993. Section 87(2) requires the owner to attach a schedule of easements to the final plan which is to be signed by various persons depending on the contents of the schedule. Where a "right of way" is proposed on a plan of subdivision, the expression is a term of art: Hillpalm v Heaven's Door Pty Ltd (2004) 220 CLR 472 at 482 [23].
In my view, it is clear that the Tribunal had s 87 of the Act in mind when it fashioned condition 13. The permit refers to the proposed right of way in favour of the respondent. The reference in the next sentence of condition 13 to "the specification" can only relate to the precise terms of the proposed right of way. There is nothing else in the condition to which the word "specification" can apply. The direction as to the specification process shows an intention that the grantor be able to limit the extent of the benefit to the Council to what is reasonable for its needs.
Whilst there may be some limitations on the material which can be used to determine the nature of easement itself, as the appellant accepted, regard can be had to the material before the Tribunal in order to determine the operation of the condition. The trial judge identified the only document before the Tribunal which shed any light on the issue as one entitled "MATERIAL IN SUPPORT OF SUBDIVISION APPLICATION". His Honour set out the relevant parts at pars [15]–[20] of his reasons. Tennent J has also referred to this material in summary form.
The trial judge analysed the material in the follow terms:
"In some of the relevant passages, reference is made to a piece of land in the north-east corner of the subdivided land which the plan of subdivision shows as 1.273 hectares of public open space. The dedication of that parcel of land as public open space was required pursuant to the permit conditions. The right of way runs along the south-west boundary of that parcel of land, between it and two of the residential lots in the subdivision. The parcel in question represents roughly 5% of the area of land in the subdivision.
On page 3 of that document, the following appears:
'In support of this development, the Proponents also propose to:
maintain public access to the Ridgeway Reserve from Hall Street in consultation with Council (this could be achieved via rehabilitating the existing fire trail, and converting it to a shared walking and cycling track, or alternatively constructing a purpose built shared track, and rehabilitating the existing fire trail);
construct a paved access road/driveway, branching off the existing fire trail, to service both 10 ha lots – the road is intended to continue past the residences, linking with existing fire trails in the Ridgeway Reserve to maintain access for fire fighting purposes ...'.
On page 12 of the document the following appears:

'Social Values

Ridgeway Reserve is a popular location for passive recreation, particularly for local residents. Walking, jogging, mountain biking and horse riding are popular activities in the area.

The existing fire trails are regularly used by walkers to access surrounding reserves and open spaces.

The Proponents have agreed to transfer slightly more than 5% of the subdivided land to the Council for open space purposes.

The Proponents also propose to negotiate with Council the location of a public access through the proposed public open space to maintain connections between Hall Street and the Reserve.'

On page 20 of the document, in a table addressing the potential environmental impact of the subdivision, in a section concerning 'Impact on social values', in a column headed 'Proposed Mitigation Methods', the following appears:
'The Proponents have agreed to transfer +5% of the subdivided land in the northeastern corner of the property to Council. This land is considered to be well located in that it borders onto the Ridgeway Reserve, maintaining public access and linkage, and provide [sic] a strategic access point for fire fighting purposes.
Rehabilitation of the existing fire trail, and conversion to a shared path is one option for maintaining public access. The alternative would be to construct a shared path within the allocated 5%, and completely rehabilitate the existing fire trail.'
On page 27 of the document, in a table addressing management issues, in a section dealing with vehicular access for fire-fighting purposes, in a column headed 'Proposed Mitigation Methods', the following appears:
'The proposed development includes an upgrade to a section of the existing fire trial [sic], and the construction of a new paved access road following the contours and providing a gentler grade, reducing the likelihood of erosion. The new section of road will be for private access only, with pedestrian and fire management access to the reserve maintained on the existing fire trail, or purpose built track within the allocated 5%.'
The first, third and fourth of the passages that I have quoted set out a proposal that public access from Hall Street to the Ridgeway Reserve was to be maintained in one of two ways – either via the existing fire trail, which coincides with the right of way, or by a new route through the newly dedicated public open space. The second of the passages that I have quoted refers only to a proposal that public access from Hall Street to the Ridgeway Reserve be maintained by a new route through the newly dedicated public open space. …"

I agree that there is nothing in that material to support the proposition that the Tribunal contemplated the grant of an unlimited right of way to the appellant. As Tennent J has concluded, it shows that there were other options for both pedestrian and fire-fighting access, and that the need for public access using the existing track along the line of the right of way was merely a possibility which was contemplated.
Overall, I think it is quite clear that condition 13 was directed to the grant of a right of way to the Council but with the developer and the Council to define the nature and extent of the Council's benefit in a schedule as provided for in s 87(2) of the Act.
File No 745/2013

CHRIS GURNEY v DANIEL JASON MURPHY
and HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

WOOD J
9 October 2014

I agree with the reasons for judgment of Tennent J and the outcome that the appellant's claim must fail and the appeal should be dismissed. I also agree with the reasons of Porter J. There is nothing I would wish to add.

[2014] TASFC 9

9 October 2014

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