Maio v City of Stirling [No 2]

The matter of Maio v City of Stirling [No 2] involved a dispute between Mr and Mrs Maio, who owned a supermarket, and the City of Stirling, regarding the alleged existence of an easement for car parking on a neighbouring property. The case was heard in the Supreme Court of Western Australia. The Maios sought to enforce a deed executed in 2010 by virtue of section 11(2) of the Property Law Act 1969 (WA), which they claimed conferred upon them proprietary rights in the form of an easement. The City of Stirling disputed the existence of any such easement, arguing that the use of the neighbouring property was not "as of right" and therefore could not form the basis of an easement by prescription or lost modern grant.

The primary legal issue before the court was whether the Maios had established the existence of an easement by prescription or lost modern grant over the neighbouring property for car parking purposes. The court also had to determine whether the use of the neighbouring property was "as of right" and if the 2010 deed constituted a contract under section 11(2) of the Property Law Act. The Maios argued that they had established the elements necessary to demonstrate the existence of an easement by virtue of the doctrine of lost modern grant or prescription, except for the point regarding the use of the neighbouring property "as of right." The City of Stirling contested the claim, asserting that the use was not "as of right" and thus could not form the basis of an easement.

The court found that the 2010 deed was indeed executed as a deed, and the City had not contended that the deed was not a contract within the meaning of section 11(2) of the Property Law Act. The judge accepted that the Maios had established the elements necessary for the existence of an easement by virtue of the doctrine of lost modern grant or prescription, except for the requirement that the use of the neighbouring property occurred "as of right." The court held that the Maios had not established this element, and thus the claim for an easement by prescription or lost modern grant failed. Consequently, the Maios' appeal was dismissed, and the City of Stirling's cross-appeal was allowed. The court found that the use of the neighbouring property was not "as of right" and that the development approval of August 1986 required the owner of lot 604 to "maintain" reciprocal parking and access rights, not create them. The court also held that the development approval did not create reciprocal rights but referred to rights derived from the 1983 deed.

In light of the court's decision, the final orders were that the Maios' appeal was dismissed with costs. The City of Stirling's cross-appeal was allowed, and the judgment of the primary judge was affirmed with costs. The court ruled that there was no easement by prescription or lost modern grant in favour of the Maios over the neighbouring property for car parking purposes.