Northern Australian Beef Limited v Bilba Capital Pty Ltd
[2023] NTCA 5
•16 May 2023
CITATION:Northern Australian Beef Limited v Bilba Capital Pty Ltd & Ors [2023] NTCA 5
PARTIES:NORTHERN AUSTRALIAN BEEF LIMITED (ACN 150 153 192)
v
BILBA CAPITAL PTY LTD
(ACN 623 007 787)
and:
JIM LAOURIS in his capacity as REGISTRAR-GENERAL (NT)
and:
ROBERT SARIB in his capacity as SURVEYOR-GENERAL (NT)
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 2 of 2022 (22207790)
DELIVERED: 16 May 2023
HEARING DATES: 4 & 5 July 2022
JUDGMENT OF: Grant CJ, Blokland & Barr JJ
CATCHWORDS:
LAND LAW – Torrens title – Exceptions to indefeasibility – Omitted or misdescribed easements
Whether easement ‘misdescribed’ in land register within meaning of s 189(1)(c) of the Land Title Act 2000 (NT) – Development approval did not create right in rem and did not result in misdescription within meaning of exception to indefeasibility – No occasion for order for rectification pursuant to s 191 of the Land Title Act – Appeal allowed.
Land Title Act 2000 (NT), s 188, s 189, s 191
Licensed Surveyors Act 1983 (NT), s 49
Planning Act 1999 (NT), s 61, s 62, s 63Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618, Billiet v Commercial Bank of Australasia Ltd [1906] SALR 193, Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149, CPR and Imperial Oil Ltd v Turta [1954] SCR 427, Dobbie v Davidson (1991) 23 NSWLR 625, Golding v Tanner (1991) 56 SASR 482, Hamilton v Iredale (1903) 3 SR (NSW) 535, Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472, Hutchinson v Lemon (1983) Qd R 356, James v Registrar General (1967) 69 SR (NSW) 361, Kitching v Phillips [2011] WASCA 19, KI Seaport Pty Ltd v Abstraxion Pty Ltd & Anor [2020] SASC 113, Marsden v McAlister (1887) 8 NSWLR 300, Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606, Michael v Onisiforou (1977) 1 BPR 9356, Overland v Lenehan (1901) 11 QLJ 59, Rock v Todeschino [1983] Qd R 356, Stuy v BC Ronalds Pty Ltd [1984] 2 Qd R 578, Tighe v Pike [2016] QCA 353, referred to.
REPRESENTATION:
Counsel:
Appellant:D Robinson SC
First Respondent: D McConnel SC
Solicitors:
Appellant:Clayton Utz
First Respondent: Ward Keller
Judgment category classification: B
Number of pages: 43
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINNorthern Australian Beef Limited v Bilba
Capital Pty Ltd & Ors [2023] NTCA 5AP 2 of 2022 (22207790)
BETWEEN:
NORTHERN AUSTRALIAN BEEF LIMITED (ACN 150 153 192)
Appellant
AND:
BILBA CAPITAL PTY LTD
(ACN 623 007 787)
First Respondent
AND:
JIM LAOURIS in his capacity as REGISTRAR-GENERAL (NT)
Second Respondent
AND:
ROBERT SARIB in his capacity as SURVEYOR-GENERAL (NT)
Third Respondent
CORAM: GRANT CJ, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 16 May 2023)
THE COURT:
This is an appeal from a finding by the Supreme Court that an easement had been ‘misdescribed’ in the land register within the meaning of s 189(1)(c) of the Land Title Act 2000 (NT), and a consequential order pursuant to s 191 of the Land Title Act directing the Registrar-General to correct the description of the easement in the land register.
Factual background
The appellant (NABL) is the registered proprietor of Section 5543 Hundred of Strangways (Section 5543). The first respondent (Bilba) is the registered proprietor of adjoining Section 5544 Hundred of Strangways (Section 5544). Sections 5543 and 5544 were previously designated respectively as Sections 5410 Hundred of Strangways (Section 5410) and Section 5409 Hundred of Strangways (Section 5409) and both owned by Suncode Pty Ltd (Suncode).
On 11 February 2011, while the two parcels were still owned by Suncode, an easement was registered creating a 10 metre wide right-of-way over part of Section 5409 in favour of the Power and Water Corporation (PWC) in order to allow access from the Stuart Highway to an Electricity Supply easement and a Water Supply easement situated further north on Section 5409 (pre-existing PWC easement).[1]
On 1 July 2011, Suncode and NABL entered into a deed pursuant to which NABL took an option to acquire Section 5410 within a period of six months for an option fee of $132,500.
On 12 September 2011, the surveying firm Earl James & Associates (EJA) prepared Drawing Number 11/8197/2 and provided it to Suncode’s solicitor. The drawing was expressed to be for the purpose of a proposed Development Application under which Section 5409 would be divided into Lots A and B, and Section 5410 would be consolidated with Lot B. Proposed Lot B was a small wedge of land two hectares in size and located contiguous to the Stuart Highway road reserve on its eastern boundary and contiguous to the rail corridor running between Sections 5409 and 5410 on its western boundary. Proposed Lot A was the greater and remaining portion of Section 5409 (also contiguous to the Stuart Highway road reserve on the east and the rail corridor on the west), which was 90.5 hectares in size and lay to the north of proposed Lot B and shared a boundary with it.
The drawing depicted a right-of-way easement running west from the Stuart Highway road reserve across proposed Lot B until it met the rail corridor, and then running north-west adjacent to the boundary of the rail corridor until it met the southern boundary of proposed Lot A. It is of note for present purposes that the drawing depicted that part of the right-of-way easement running from the point of intersection with the Stuart Highway way reserve to the rail corridor as 20.1 metres in width, and that part running north-west along the rail corridor, by extrapolation from other measurements, as approximately 20 metres in width. The drawing contained the notation:
All areas and dimensions are subject to survey
Right of Way over Lot B in favour of Lot A
On its face, the purpose and effect of the proposed Development Application as described in Drawing Number 11/8197/2 was to give direct access to Section 5410 from the Stuart Highway across that wedge of land which was to be subdivided from Section 5409 and consolidated with Section 5410 (proposed Lot B), while at the same time preserving access to Section 5409 from the Stuart Highway by grant of the right-of-way easement across proposed Lot B in favour of Section 5409.
On 21 September 2011, EJA prepared revised Drawing Number 11/8197/4. The revised drawing was for the purpose of the same proposed Development Application and contained the same detail as Drawing Number 11/8197/2, with the exception that the right-of-way easement over proposed Lot B was not depicted with a width measurement and had been relocated to run north along the boundary with the Stuart Highway road reserve until it met the southern boundary of proposed Lot A.
On 21 December 2011, Suncode and NABL entered into a variation of the option deed to make the consolidation of proposed Lot B with Section 5410 a condition of purchase by NABL. On that same day, NABL exercised the option to purchase Section 5410 on those terms, and Suncode and NABL entered into a sale agreement which included those terms. The parties’ obligations in relation to the creation of the proposed access easement were contained in clause 17.1 of the sale agreement as follows:
17.1 Right of Way
(a) The Purchaser agrees that on Completion it will grant to the Vendor as the owner of the balance of Section 5409 Hundred of Strangways (being the area described as Lot A on the Plan) a right of way easement over that part of Lot B shown on the Plan as “right of way easement” (“the ROW Area”) on the terms provided for in Schedule 3 of the Law of Property Act.
(b) The Purchaser further agrees to carry out the following works at no cost to the Vendor and within 12 months from Completion:
(i)Construct a formed roadway to heavy duty truck standard which is kerbed, guttered, tarred and sealed from the Stuart Highway entrance to the railway corridor;
(ii)Construct an unsealed road from the Stuart Highway entrance along the ROW Area to allow access for vehicles and agricultural machinery at a width of 3 times the width of a sedan passenger motor vehicle; and
(iii)Fence the boundary of Lot A and Lot B as shown on the Plan, with gates at the eastern end of that boundary to allow access to Lot A from the ROW Area.
On 30 January 2012, planning consultants submitted an application for Development Consent on behalf of Suncode as owner and with the authority of NABL as the prospective purchaser. That application was for the subdivision and consolidation of Sections 5409 and 5410 pursuant to s 46 of the Planning Act 1999 (NT) in accordance with Drawing Number 11/8197/4.
On 14 February 2012, PWC sent a letter to the Development Consent Authority (DCA) requiring the pre-existing PWC easement to be surveyed and included on any new title to be issued as a result of the subdivision and consolidation.
On 21 February 2012, the Director of Roads Planning produced an internal memorandum which stated:
Road Network Division, Department of Lands and Planning has no objections in principle to the above-mentioned development, subject to the following comments and requirements:
1. The proposed Right of Way over Lot B in favour of Lot A is too close to the intersection of the access to Section 5410 and the Stuart Highway and may result in the backing up of vehicles on the Stuart Highway. The Right of Way should be established over the existing access track adjacent to the railway corridor to provide sufficient separation between the access track and the Stuart Highway.
2. The existing access track to proposed Lot A may be retained for the current land use, but will not be permitted if the land use on Lot A changes to an improved use. This is consistent with concerns reflected in the previous formal agreement for access to the subject land.
3. Any proposed work (including provision of services) within, or impacting upon the Stuart Highway road reserve shall be in accordance with the standards and specifications of the Road Network Division, Department of Lands and Planning.
4. The Developer, his Contractor or Service Provider is required to obtain a “Permit to Work Within a Road Reserve” from the Department of Construction and Infrastructure prior to the commencement of any works within the Stuart Highway road reserve.
The principal concern expressed in that memorandum was that the proposed right-of-way easement over Lot B depicted in Drawing Number 11/8197/4 was too close to the intersection between the Stuart Highway and the existing access road to Section 5410. That concern was subsequently communicated to the DCA, and the DCA advised the planning consultants acting for Suncode that the Road Network Division required the proposed access easement to be relocated to the existing access track adjacent to the railway corridor.
On 16 March 2012, the application for approval of the subdivision and consolidation of Sections 5409 and 5410 was considered at a meeting of the DCA. The agenda for that meeting listed a number of matters to be taken into account under s 51 of the Planning Act, including the following objective from the Litchfield Planning Concepts and Land Use Objectives 2002:
Objective 2.4 (Mobility and Transport) – To provide the shire with a coordinated, integrated and efficient transport network.
· Provide appropriate all season and heavy vehicle access for agricultural, horticultural, extractive and industrial activities.
On 20 March 2012, the principal of EJA, a NABL representative and the solicitor acting for NABL met with representatives of PWC. At that meeting, PWC and NABL reached an agreement for EJA to prepare a survey plan to create a new right-of-way in favour of PWC to replace the pre-existing PWC easement running adjacent to the railway corridor, and to create the access right-of-way in the same general position as depicted in Drawing Number 11/8197/2.
On 22 March 2012, the DCA gave the planning consultants written notice that it had determined to grant consent to the proposed subdivision and consolidation subject to the conditions specified in Development Permit DP 12/0174. That Permit contained the following conditions precedent:
1. Prior to the endorsement of plans the developer shall resolve the location of the proposed right of way with the Department of Lands and Planning (Road Network Division) to the satisfaction of the consent authority.
2. Prior to the endorsement of plans and prior to commencement of works (including site preparation), amended plans to the satisfaction of the consent authority must be submitted to and approved by the consent authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show … the location of the proposed right of way easement.
Over the course of 22 and 23 March 2012, EJA performed a field survey for the proposed subdivision and consolidation, and requested the Surveyor-General to issue new lot numbers and a plan number in accordance with Development Permit DP 12/0174.
On 27 March 2012, the planning consultants provided the Director of Roads Planning with a copy of Drawing Number 11/8197/2 showing the location and configuration of the proposed right-of-way easement in accordance with condition precedent 1 of the Development Permit. The covering email stated:
In reference to Road Network’s comments on the application to subdivide Section 5409 Hundred of Strangways and consolidate with Section 5410, we have amended the subdivision drawing to relocate the right-of-way to Section 5409 to a location adjacent to the rail corridor. A copy of your comments and the amended drawing is attached.
Could you please indicate whether the location of the right-of-way shown in the drawing is acceptable to you.
On 28 March 2012, the solicitor for NABL sent Suncode’s solicitor a copy of Development Permit DP 12/0174 and sought Suncode’s consent to relocate the proposed right-of-way from the location depicted on Drawing Number 11/8197/4 (which was annexed to the Sale Agreement entered into on 21 December 2011) to the location depicted on Drawing Number 11/8197/2. That letter relevantly stated:
[O]ur client wishes to proceed with the purchase and is working hard to satisfy the Condition Precedent under the Sale Agreement, including the steps required to obtain the titles required for completion. Considerable progress has been made toward satisfying the Conditions Precedent:
1. Condition Precedent – clause 2A(a)(i) - Separate Titles:
(a)On 22 March 2012, the Development Consent Authority granted Development Permit DP12/0174 (“the Permit”), a copy of which is attached.
We have instructed Earl James & Associates (“EJA”) to finalise the survey work, survey plans, obtain the consents required under the Permit and take all other steps required to obtain separate titles.
(b)You will note condition precedent 1 to the Permit, which requires the right of way (being the right of way to be granted over Lot B in favour of Lot A being that part of Section 5409 to be retained by your client) to be relocated from the position shown on the plan attached to the Sale Agreement.
I attach a revised draft plan showing the proposed new location of the right of way, which it is proposed will also be the location of a new access easement in favour of Power and Water Corporation (“PWC”) in stead (sic) of the current right of way held by PWC.
Can you please confirm your client’s agreement to the change in the location of the “ROW Area” for the purposes of clause 17.1(a) of the Sale Agreement. The works provided for in clause 17.1(b) will be undertaken on this new location.
…
Can you please advise if you have any queries as to the matters noted above, and in particular confirm your client’s agreement to:
(i)the new location of the ROW Area under clause 17.1(a) of Sale Agreement;
…
The director and principal of Suncode subsequently signed an endorsement indicating Suncode’s agreement in writing in the following terms:
Suncode Pty Ltd hereby agrees to:
(a) The new location of the Right of Way Area as set out on Survey Plan [sic] 11/8197/2;
…
On 2 April 2012, the planning consultants sent an email to the Director of Roads Planning attaching Drawing Number 11/8197/2 and stating:
I am trying to finalise the endorsement of drawings attached to the subdivision permit for this land, to enable the sale contract to be settled. The matter of the location of the right of way is the only thing to be done to obtain endorsement of the drawings.
Could you please have a look at the attached amended drawing, and give me a response that I can forward to DCA.
On Tuesday, 3 April 2012, the Department of Lands and Planning responded in the following terms:
The location of the right of way easement on the attached subdivision drawing is acceptable, provided that where the easement meets the Stuart highway (sic) road reserve, it coincides with the existing access intersection to the Stuart Highway.
On 3 April 2012, the Road Network Division advised the planning consultants that the location of the proposed right-of-way as depicted on Drawing Number 11/8197/2 was acceptable, on condition that the entry from the Stuart Highway road reserve to proposed Lot B was at the same point as the existing access intersection with the Stuart Highway. The planning consultants forwarded that approval to the DCA, together with Drawing Number 11/8197/2, in satisfaction of condition precedent 1 of the Development Permit. The covering email stated:
Development Permit DP2012/0174 approved the subdivision and consolidation of Sections 5409 and 5410 Hundred of Strangways. A copy of the permit is attached.
The conditions precedent required the location of the right of way to Section 5409 to be resolved with the Road Network Division, and an amended subdivision drawing showing the relocated right of way.
The agreement of Road Network Division is in the attached email.
The amended drawing sent to Road Network Division for its concurrence is attached.
Please accept these items in satisfaction of the conditions precedent and arrange for an endorsed drawing to issue.
On 16 April 2012, the DCA endorsed Drawing Number 11/8197/2 (which had been hand numbered 2012/0064/1 by the Department of Lands and Housing) with a stamp signed by a delegate of the DCA stating:
This is the drawing referred to in Development Permit DP12/0174 issued by the Development Consent Authority on 16.4.2012.
That endorsed drawing included the right-of-way easement across proposed Lot B in its original width of 20 metres. Under cover of an email on that same day, the DCA sent the endorsed drawing to the planning consultants with a letter which stated:
Thank you for the plans submitted which address the requirements of Condition Precedent of Development Permit DP12/0174.
Please find attached, for your records, an endorsed copy of the required plans numbered 2012/0064/01 which now forms part of the permit.
You are reminded that Conditions of Development Permit DP12/0174 states: ‘The works carried out under this Permit shall be in accordance with the drawings endorsed as forming part of this permit.’
On 18 April 2012, the Surveyor-General allocated Sections 5543 and 5544 as the new lot numbers and LTO 2012/066 as the plan number for the subdivision and consolidation of Sections 5409 and 5410. Under that allocation, Section 5409 was redesignated as Section 5544 with the excision of that area of land described as Lot B in Drawing Numbers 11/8197/2 and 2012/0064/1. Section 5410 with the addition of Lot B was consolidated and redesignated as Section 5543.
On 18 April 2012, the surveyor from EJA who had conducted the field survey produced a Survey Report for LTO 2012/066. So far as is relevant for these purposes, that report provided:
The survey of Section 5543 and 5544 has been carried out in accordance with Development Permit DP 12/0174.
The survey realigns the boundary between Section 5409 and 5410 which are in the same ownership. The purpose of the re-alignment is to facilitate the development of Section 5543 by allowing improved access from the Stuart Highway.
…
Easements
Existing Water Supply and Electricity Supply easements have been retained over Section 5543 and 5544.
New Right of Way easements have been shown:
“A” over Section 5543 in favour of Section 5544 and PAWC.
“B” & “C” over Sections 5543 and 5544 in favour of PAWC to enable vehicle access to the Water Supply and Electricity Supply easements.
The field book drawings prepared as part of the field survey showed easement “A” running west on Section 5543 from the Stuart Highway road reserve until it reached the rail corridor, and then north-west adjacent to the rail corridor until it met the proposed new dividing boundary with Section 5544. That part of the easement running west from the Stuart Highway road reserve to the rail corridor is depicted with a width of 20.33 metres. That part of the easement running north-west adjacent to the rail corridor is depicted by extrapolation from other measurements with a width of approximately 10 metres. Easement “B” is a continuation of easement “A” running adjacent to the rail corridor north-west across Section 5544 from the proposed new dividing boundary with Section 5543. The width of easement “B” is depicted by extrapolation with a width of approximately 10 metres. Easement “C” runs across Section 5543 adjacent to the western boundary of the rail corridor to provide access to the PWC Water Supply easement transecting Section 5543 on an east-west orientation. Easement “C” is expressly depicted with a width of 10 metres. A provisional Survey Plan LTO 2012/066 was produced in accordance with the field survey and incorporated those easements in those widths. The provisional Survey Plan was subsequently endorsed in an Examination Report by an EJA supervising surveyor.
Neither the field book drawings nor the Survey Report nor the Examination Report provide any reason why that part of easement “A” running north-west adjacent to the rail corridor is depicted with a width of approximately 10 metres, rather than the apparent width of 20 metres depicted in Drawing Number 11/8197/2 (which had been subsequently endorsed as Drawing Number 2012/0064/1 and incorporated into Development Permit DP 12/0174). There was no evidence of any instructions given by any person on behalf of either Suncode or NABL to any person at EJA to vary the dimensions of the right-of-way easement in favour of Lot A from those depicted in Drawing Number 2012/0064/1.
On 19 April 2012, EJA advised PWC by email that the DCA had approved the subdivision and consolidation, provided PWC with copies of Development Permit DP 12/0174, endorsed Drawing Number 2012/0064/1 and provisional Survey Plan LTO 2012/066, and sought PWC’s consent to the extinguishment of the existing PWC right-of-way easement on the basis that new access easements would be created in favour of PWC as depicted on provisional Survey Plan LTO 2012/066.
On 3 May 2012, the principal of EJA sent an email to various authorities, including PWC and the Road Network Division, which stated:
The DCA has approved the subdivision of the above properties in order to create two lots.
We have been advised that no changes to the existing service arrangements are required at this stage and that further works will be undertaken when proposed Section 5543 is developed for a planned abattoir.
These works will include an upgrade of the entrance from the Stuart Highway and changes to the power connection to Section 5543.
In order for the subdivision to be processed would you please confirm that the Condition[s] of DP12-0174 have been satisfied.
The email again attached a copy of the Development Permit (including Drawing Number 2012/0064/1) and a copy of provisional Survey Plan LTO 2012/066 without any reference to the discrepancy between the width of the right-of-way easement shown on the two drawings. On 3 May 2012, an authorised representative of PWC executed the document necessary to extinguish the pre-existing PWC right-of-way easement.
On 4 June 2012, Suncode executed provisional Survey Plan LTO 2012/066, and on 5 June 2012 EJA lodged executed Survey Plan LTO 2012/066, the Survey Report, the Examination Report and the field book with the Surveyor-General.
On 8 June 2012, the principal of EJA sent an email to the DCA attaching letters of clearance from a number of authorities and a copy of executed Survey Plan LTO 2012/066. The email stated:
DP12/0174 approves the subdivision of the above lots in order to create 2 lots.
Attached is a copy of the survey plan that has been lodged with the Surveyor-General and the clearances for the Development Permit conditions.
Would you please arrange for the issue of Part V.
This subdivision deals with the land that is to be the site of the new meatworks.
We understand that the Government is [quite] anxious for this subdivision to be finalised as soon as possible so I am sure that everyone involved would appreciate it if you could give it some priority.
On 13 June 2012, the delegate of the Registrar-General informed the Surveyor-General that the documents required for the registration of the Plan of Subdivision had been lodged and the conditions for registration were otherwise satisfied.
On 21 June 2012, the delegate of the DCA sent an email to officers of the Registrar-General and Surveyor-General attaching Survey Plan LTO 2012/066 and stating:
To whom it may concern
I certify pursuant to section 62(1)(a) & (b)(i) of the Planning Act as a duly authorised delegate of the consent authority that:
1. consent under Part 5 of the Planning Act has been given in relation to this subdivision; and
2. the subdivision work required under Part 5 has been carried out in accordance with the requirements of the consent authority.
This clearance relates to LTO2012/066.
Sections 62(1)(a) and (b)(i) of the Planning Act provide relevantly that the Surveyor-General must not approve a plan of survey submitted under s 49(3) of the Licensed Surveyors Act 1983 (NT) for a subdivision of land unless satisfied that consent under Part 5 of the Planning Act has been given for the subdivision, and, if works are required to be carried out under Part 5, that those works have been carried out in accordance with the requirements of the consent authority.
On 28 June 2012, the Surveyor-General approved Survey Plan LTO 2012/066 pursuant to s 49(3) of the Licensed Surveyors Act. The approved Survey Plan continued to depict the right-of-way easement in question with a width of approximately 10 metres, rather than the apparent width of 20 metres depicted in Drawing Number 11/8197/2.
On 29 June 2012, an Application for Separate Titles by Plan of Subdivision was registered with the Land Titles Office. That registration resulted in the cancellation of the titles for Section 5409 (CUFT Volume 767 Folio 565) and Section 5410 (CUFT Volume 767 Folio 564), and the issue of new titles for Section 5543 (CUFT Volume 767 Folio 572) and Section 5544 (CUFT Volume 767 Folio 573) over the land. The right-of-way easements as described in approved Survey Plan LTO 2012/066 were created on registration of the subdivision.
On 12 July 2012, NABL purchased Section 5543 from Suncode and became the registered proprietor of the lot.
On 9 October 2015, Wellard Group Holdings Pty Ltd purchased Section 5544 from Suncode and became the registered proprietor of the lot. On 8 December 2015, there was an intra-group transfer of Section 5544 to a related entity. On 29 June 2018, Bilba purchased and became the registered proprietor of Section 5544.
On 18 September 2019, NABL commenced proceedings against Bilba in the Supreme Court alleging: (a) that Bilba’s road trains were encroaching on NABL’s land outside the right-of-way easement running across Section 5543; (b) that Bilba’s road trains were crossing onto the inbound lane of the access road to Section 5543 from the Stuart Highway, causing the potential for road train traffic to back up on both the inbound lane and the slip lane from the Stuart Highway immediately before the entrance; and (c) that Bilba’s road trains were risking damage to a subterranean gas pipeline traversing the easement.
It is common ground that the right-of-way easement over Section 5543 is the only means of access to Section 5544 from the Stuart Highway, and that the present width of 10 metres is too narrow for road trains entering and exiting Section 5544 to turn without encroaching onto parts of Section 5543 which are not subject to the easement.
On 13 August 2020, Bilba’s solicitors made application to the Surveyor-General and the Registrar-General to correct ‘the land register as to the boundary of the Right of Way Easement [over Section 5543] pursuant to s 17 of the Land Titles Act 2000 by way of a corrected Approved Survey Plan (pursuant to s 51 of the Licensed Surveyors Act) being substituted on the land register for Sections 5543 and 5544’. The correction sought to have the right-of-way easement registered in the same dimensions depicted in endorsed Drawing Number 2012/0064/1, as incorporated into Development Permit DP 12/0174. The basis for that application was, in essence, that subs 62(1)(a) of the Planning Act required that the plan of survey could only be approved under s 49(3) of the Licensed Surveyors Act if consent had been given for the subdivision or consolidation under Part 5 of the Planning Act, and consent had not been given to the right-of-way easement as misdescribed in Survey Plan LTO 2012/066.
On 18 September 2020, the Registrar-General and the Surveyor-General advised: (a) that on consideration of the materials and submissions they did not consider there was an error in the land register due to the registration of Survey Plan LTO 2012/066 or that the Survey Plan was incorrect; and (b) that the Survey Plan had been approved and registered in accordance with the correct process and relevant approvals.
On 16 October 2020, Bilba commenced proceedings in the Supreme Court seeking an order under s 191 of the Land Title Act 2000 (NT) directing the Registrar-General to correct the land register to have the right-of-way easement recorded as 20 metres in width. Bilba’s contention was that as the registered proprietor of Section 5544, it was entitled to the benefit of the right-of-way easement which had been ‘misdescribed’ in the relevant sense because it was shown on Survey Plan LTO 2012/066 as 10 metres wide, whereas Development Permit DP 12/0174, which incorporated endorsed Drawing Number 2012/0064/1, specified an easement of 20 metre width. On that basis, Bilba contended that it was entitled to an order under s 191 of the Land Title Act directing the Registrar-General to correct the register accordingly.
On 23 February 2021, the Supreme Court ordered that the proceedings alleging encroachment be consolidated with the proceedings seeking rectification, and that the rectification question be tried before the trial of the consolidated proceedings pursuant to Rule 47.04 of the Supreme Court Rules 1987 (NT). The Registrar-General and the Surveyor-General properly advised that they would abide the outcome and did not seek to take part in the proceedings.
The decision of the Supreme Court
The Supreme Court determined that the rectification question involved two separate issues, viz:
(a)whether there had been an omission or misdescription of the right-of-way easement as described in Survey Plan LTO2012/066 registered on 29 June 2012 within the meaning of ss 189(1)(c) of the Land Title Act 2000 (NT); and
(b)if so, whether the Supreme Court should make orders under s 191 of the Land Title Act to give effect to a correction of the description of the right-of-way easement consistently with the dimensions depicted in Drawing Number 2012/0064/1.
After conducting an analysis of the relevant legislative scheme, the Supreme Court conducted a review of the evidence. That review disclosed that none of the parties involved in the negotiations at the time of the subdivision and consolidation turned their mind to any discrepancy between the width of the easement as described in Survey Plan LTO2012/066 and the dimensions depicted in Drawing Number 2012/0064/1.
The Court then considered the expert evidence given by a licensed surveyor called on behalf of Bilba. That evidence was to the effect that a licensed surveyor must produce a plan of subdivision in accordance with the development permit, including in accordance with the plans endorsed on the development permit. In doing so, all easements stated in the development permit conditions or endorsed plans are required to be shown on the survey plan, if the plan is going to be the instrument used to create that easement. The final location and dimensions of an easement may be subject to the field survey being carried out first, but the easement on the survey plan must be compliant with the development approval. If they are not, the Surveyor-General should requisition the licensed surveyor to amend the plan to meet the requirements of the development approval.
By decision delivered on 8 February 2022,[2] the Supreme Court ultimately found that a mistake was made by EJA in drawing the Survey Plan; and that the expert opinion of the licensor surveyor was consistent with the legislative regime requiring a plan of survey to be drawn in conformity to any development permit, and requiring the Surveyor-General not to approve a plan of survey for a subdivision otherwise than in accordance with a development permit. The Court concluded on that basis that the easement had been ‘misdescribed’, without any analysis of the meaning of that term as it appears in the relevant statutory exception to indefeasibility. The Court indicated it would make consequential orders under s 191 of the Land Title Act to give effect to a correction of the description of the easement consistent with the dimensions depicted in the endorsed drawing.
By Notice of Appeal filed on 8 March 2022, NABL appealed the whole of the judgment of the Supreme Court finding there was a misdescription of the easement and determining that the Court would exercise the power under s 191 of the Land Title Act to give effect to a correction of the description. Various grounds of appeal are pleaded, but they are in essence that the trial judge erred in finding that the easement was misdescribed within the meaning of s 189(1)(c) of the Land Title Act; and that the trial judge failed to take into account material factors in determining whether to direct a correction. If the appellant is successful on the first ground, there is no occasion for correction and it must necessarily succeed on the second ground.
No direction has been given under s 191 of the Land Title Act, because on 4 May 2022 the Supreme Court made orders staying judgment until 28 days after the determination of the appeal, and giving the parties liberty to apply.
The indefeasibility provision
Division 2 of Part 9 of the Law of Property Act2000 (NT) deals with easements. Section 156 provides that, in the case of a subdivision, an easement is created by the registration of a plan of subdivision within the meaning of s 4 of the Land Title Act. The term ‘plan of subdivision’ is relevantly defined to mean a plan approved by the Surveyor-General under s 49(3) of the Licensed Surveyors Act relating to the subdivision of a lot.
Section 101 of the Land Title Act provides for the creation of an easement by the registration of a plan of subdivision. Section 102 of the Land Title Act provides that an easement may be created by registering a plan of subdivision showing: (a) the nature and location of the easement to be created; (b) the lot or part of the lot to be burdened by the easement; and (c) the lot or part of a lot to be benefited by the easement.
The indefeasibility of title provision is contained in s 188 of the Land Title Act. Section 188(1) provides that a registered proprietor of an interest in a lot holds that interest subject to registered interests affecting the lot but free from all other interests. The exceptions to indefeasibility are contained in ss 188(3) and 189. Section 189(1)(c) provides that a registered proprietor of a lot does not obtain the indefeasibility conferred by s 188 of the Land Title Act for ‘the interest of a person entitled to the benefit of an easement if its particulars have been omitted from or misdescribed in the land register’.
Section 191 of the Land Title Act provides:
(1) If there has been fraud by the registered proprietor or section 189(1)(c) to (f) applies, the Supreme Court may make the order it considers just.
(2) Without limiting subsection (1), the Supreme Court may, by order, direct the Registrar-General:
(a)to cancel or correct the indefeasible title or other particulars in the land register;
(b) to cancel, correct, execute or register an instrument;
(c) to create a new indefeasible title;
(d) to issue a new instrument; or
(e) to do anything else.
The exception to indefeasibility in s 189(1)(c) of the Land Title Act was originally found in the Real Property Act 1886 (SA), which also had force in the Northern Territory until it was repealed in 2000. Placitum IV of s 69 of that legislation provided the exception in the following terms:
Where a right-of-way or other easement … has been omitted or misdescribed in any folio of the Register or certificate as to title, or other instrument of title …
Similar provisions exist in all Australian jurisdictions[3], but the law relating to omitted or misdescribed easements as an exception to indefeasibility has evolved in a way which has been described as ‘complex [and] unsatisfactory’[4] and ‘jurisdictionally idiosyncratic’[5]. Much of the difficulty in that respect surrounds the extent to which implied easements, prescriptive easements and equitable easements operate as exceptions to indefeasibility in the Torrens system, and the different statutory formulations which have been adopted in different jurisdictions and subsequently amended in response to judicial decisions. The present case does not involve an easement created prior to the adoption of the Torrens system, or any argument concerning implied easements, prescriptive easements and equitable easements, and the Northern Territory exception remains drafted in terms similar to the first legislative incarnation, but, as will be seen, is now modelled on the corresponding Queensland provision.[6]
Bilba does not assert that the easement has been ‘omitted from’ the register. Section 189(3) of the Land Title Act provides that for the purpose of the exception in subsection (1)(c), an easement is taken to have been ‘omitted’ if it was in existence when the servient tenement was first registered but particulars are no longer recorded against that lot, or where the easement was registered but later omitted by an error of the Registrar-General.[7] The present circumstances do not constitute an omission in the relevant sense.
A number of observations may be made about the exception in s 189(1)(c) of the Land Title Act and the statutory prescription of ‘omitted’. First, it allows the term ‘omitted from’ a narrow operation which is limited to interests which have been registered but subsequently left out of the register. Second, no specific provision is made for implied easements, prescriptive easements and equitable easements as an exception to indefeasibility. Third, where the relevant exception to indefeasibility has no application, the right claimed can only be enforced in personam, if at all.[8]
In that statutory context, Bilba’s contention is that the right-of-way easement has been ‘misdescribed in’ the land register. There is scant authority on the meaning of that term as it appears in s 189(1)(c) of the Land Title Act and the various analogous provisions. Taking its ordinary meaning, the term ‘misdescribed in’ means nothing more or less than ‘described incorrectly’. The adoption of that ordinary meeting gives rise to a degree of ambiguity, because it is unclear by whom and in what fashion the easement must have been misdescribed in order to attract the application of the exception. In particular, there is the anterior question of whether that particular exception is also limited to easements which have been registered but subsequently misdescribed in the register.
The Torrens statutes across Australia have all included a quite separate exception to indefeasibility, in varying forms, for the wrong description of the land or its boundaries. It has been said that the gist of the exception is that where land has been included in a grant, certificate or folio by wrong description of parcels or boundaries, then title to that land remains with the original owner.[9] Bilba does not suggest that provision has application in the present circumstances. Rather, it has drawn attention to a number of authorities dealing with that particular exception to indefeasibility as a means of informing what is meant by the term ‘misdescribed’ in s 189(1)(c) of the Land Title Act, which deals with a separate head of exception.
A provision of that type appearing in s 44 of the Real Property Act 1861 (Qld) was considered by the Queensland Court of Appeal in Overland v Lenehan.[10] Chief Justice Griffith concluded that ‘an error in description of boundaries cannot be relied upon to displace the title, otherwise good, of a person in possession of land erroneously included in the title’. The exception is subject to limitations. First, it is confined to a physical misdescription of boundaries, parcels or area, and does not include a ‘wrong description’ that may arise from a failure to record a reservation, lease or fresh title.[11] It may be noted in the present case that the boundaries of the land were not misdescribed in that sense. Rather, Bilba’s contention is that the full breadth of the right-of-way was not reserved. Second, while the wrong description exception extends to, and generally usually concerns, surveying mistakes, the mistake in question is one which purportedly includes a portion of land in the title that neither the transferor nor transferee intended to be included.[12]
The wrong description exception is directed to circumstances in which parcels or boundaries are misdescribed in a way which ignores the existence of valid title to land, either subsisting at general law prior to conversion to Torrens system land or already registered under the Torrens system. It is for that reason that the corresponding exception now appearing in s 189(1)(d) of the Land Title Act is cast in terms of ‘the interest of another registered proprietor making a valid claim under an earlier existing indefeasible title for all or part of the lot’. The authorities dealing with that category of exception have limited application and utility in determining the meaning of the ‘misdescription’ of an easement as it appears in s 189(1)(c) of the Land Title Act, which ultimately must be construed in its statutory and historical context.
In Stuy v BC Ronalds Pty Ltd,[13] the Supreme Court of Queensland considered a situation in which a parcel of land was sold subject to an agreement in writing that the owners of the lot sold and the adjoining lot would each grant to the other an easement of right-of-way over a common driveway which ran at its centre line along the boundary between the two lots. The purchaser of the lot required the use of the full width of the driveway in order to allow access by trucks to an industrial shed on the lot, and that was how the driveway had been used prior to sale. Easements were never registered in accordance with the agreement. The adjoining lot was sold on a number of occasions, and the subsequent purchasers sought to construct a fence along the boundary line which would have precluded the use of the driveway to access the industrial shed. The party claiming the benefit of the easement sought to invoke the exception against indefeasibility.
The corresponding exception to indefeasibility in the Queensland legislation was then cast in similar, but not identical, terms to the Northern Territory provision. Section 44 of the Real Property Act 1861 (Qld), which was the legislation in force at the time, provided the exception in relation to ‘the omission or misdescription of any right of way or other easement created in or existing under the same land’. The Court held that for an easement to fall within the exception, it must have been created in or exist upon the land. Under the Real Property Act, that could only occur by the registration of an instrument. An agreement between the parties for the grant of an easement did not mean that an easement had been created in or existed upon the land. At its highest, an equitable interest was created which was enforceable against the registered proprietor who agreed to grant the easement. Such an equity is a personal liability which is not enforceable against successors-in-title.
As part of the property law reforms in Queensland, the Real Property Act 1861 was repealed and the relevant exception to indefeasibility was enacted in s 185 of the Land Title Act 1994. The exception is provided for ‘the interest of a person entitled to the benefit of an easement if its particulars have been omitted from, or misdescribed in, the freehold land register’. It was that provision on which s 189(1)(c) of the Land Title Act in the Northern Territory was modelled, and they are in the same terms.[14] The new provision was in slightly different terms to that contained in the Real Property Act 1861, raising the question whether the construction adopted in Stuy v BC Ronalds had application to the new provision. Stuy v BC Ronalds also did not deal with the situation in which an easement is registered pursuant to a development permit other than in strict compliance with the permit.
Both those questions were addressed in a more recent series of Queensland cases. In Pike & Anor v Tighe & Ors,[15] the Planning and Environment Court of Queensland considered a development approval which was subject to a condition that an access and utilities easement was to be provided ‘to allow pedestrian and vehicle access, on-site manoeuvring and connection of services and utilities’ for the benefit of the dominant tenement. It was a further condition of the approval that the easement ‘be registered in accordance with the Land Title Act 1994, in conjunction with the Survey Plan’. An easement document was subsequently drafted which described the purpose of the grant of the easement as ‘access’, without any reference to services and utilities. The draft Survey Plan was approved by the proprietors of the dominant tenement and subsequently registered. When the matter came to light, the proprietor of the dominant tenement sought to invoke the exception to indefeasibility. The Planning and Environment Court determined:[16]
Whilst the easement per se as registered on the titles is correct insofar as its real property description is concerned, the purpose as described in the registered instrument is incorrect and is inconsistent with the Development Approval. There is no distinction that could rationally be drawn between a misdescription in the boundaries or area on a site plan or other document and a misdecription in the purpose of an easement.
There is clearly no “omission from” the register in this case. The easement is registered. However, there is arguably a “misdescription in” the easement as registered insofar as its purpose is concerned, if the purpose as described in the Development Approval runs with the land.
In other words, the purpose of the easement in my view is capable of being corrected in the instrument that has been registered. The first respondent’s indefeasibility of title is otherwise protected.
… An interest in a lot, in this case an easement, is created upon registration of the instrument (the easement document). That has occurred here. The indefeasibility of that interest in this case depends on whether there is a misdescription in the purpose for which the easement was created. I have found that there was, that the condition in the development approval binds a subsequent buyer of a lot in the completed subdivision and that the misdescription is open to be corrected so as to have it conform to the condition in the development approval, a condition that I have found runs with the land in respect of a reconfiguration of a lot and consistently with my construction of relevant legislation including the Land Title Act and section 242 of [the Sustainable Planning Act 2009].
That ruling was subsequently reversed on appeal to the Queensland Court of Appeal in Tighe v Pike.[17] In overturning the decision below, Fraser JA (with whom the other members of the Court agreed) stated:[18]
… Upon the findings and the evidence no easement was ever granted for any “on-site manoeuvring and connection of services, and utilities”. The primary judge’s analysis assumed, incorrectly in my respectful opinion, that condition 2 of the approval granted an easement for those purposes. Rather, it imposed a conditional obligation upon the proprietor of the original lot to provide and register such an easement. Assuming all else in the first respondents’ favour, including that s 245 of the Sustainable Planning Act (see [18] of these reasons) attached that obligation to lot 1 upon its creation and rendered that obligation binding upon a subsequent registered proprietor of that lot, in the proceedings in the Planning & Environment Court the first respondents could invoke no more than a personal right to apply for an enforcement order (see [16] of these reasons) for the grant of such an easement: see Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [53]–[54] and Wirkus v Wilson Lawyers [2012] QSC 150 at [49], [51].
The reference to Hillpalm Pty Ltd v Heaven’s Door Pty Ltd[19] is to seriously considered dicta of the majority of the High Court dealing with the consequences of the use of land otherwise in accordance with a development consent. The Court noted that some cases had spoken of planning restrictions giving rise to rights in rem, and observed that in order to be valid those statements must find their foundation in the relevant statutes. If a subdivision consent operated to create a right in rem, that would present a fundamental challenge to the effective operation of the Torrens system, and particularly the guarantee of indefeasibility by registration and the limited exceptions to that guarantee. If a subdivision consent did create a right in rem, that would give rise to a clear inconsistency between the planning scheme and the Torrens system. The majority was not required to determine the matter, because it was common ground between the parties that the registered proprietor’s title was not subject to any interest arising from the subdivision approval. That was because the only rights arising from that approval were enforceable by personal action, rather than by any action or application to rectify the land register.
The situation obtaining in Queensland would therefore appear to be that for the omission or misdescription of an easement over land already within the Torrens system to fall within the exception, it must have been created in or exist upon the land. The act of registration necessary to create an easement will vary depending on the circumstances. In Rock v Todeschino,[20] the Queensland Supreme Court considered a situation in which the plan of subdivision which was registered showed an easement over one of the newly created parcels for the benefit of the other. No instrument specifically creating the easement was executed or registered, and certificates of title were issued which made no reference to an easement. The Court concluded that the plan of subdivision was an ‘instrument’ within the meaning of the Real Property Act 1861, and upon its registration it passed the right-of-way easement interest recorded in the plan. As a result, the easement was registered for the purposes of the legislation and came into existence upon registration of the plan. The easement was properly considered to be registered, but ‘omitted’ from the certificate of title by reason of the failure of the Registrar of Titles to record the easement which had been created by the registration of the plan. The decision in Hutchinson v Lemon[21] is to similar effect.
This reading of the legislation is consistent with appellate authority from New South Wales. The corresponding exception to indefeasibility in s 42 of the Real Property Act 1900 (NSW) is ‘the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act’. While the first limb of that exception protects easements in existence prior to the land being brought under the Torrens system of title (whether arising by prescription, implication or express grant),[22] the exception arises only in relation to land already under the Torrens system where an easement has been validly created by execution and registration of an instrument and the easement is omitted or misdescribed thereafter.[23] It should be noted that the position in relation to land already under the Torrens system is not contingent on the inclusion of the words ‘validly created’ in the current form of the exception. The form of the exception under consideration in James v Registrar General was in different terms, but was still found to require that the easement had been registered (or at least that the parties had done all that was required to comply with the statutory formalities for creating easements and lodged the necessary documents for registration), and then omitted or misdescribed thereafter.[24]
In Kitching v Phillips,[25] the Western Australian Court of Appeal considered a situation in which the condition of a subdivision approval provided for one of the proposed lots to be transferred to the local authority for use as a communal training and obedience area for dogs. The subdivision material made reference to the location of walkways from the other proposed lots in the subdivision to provide access to the communal area, although the terms of the contracts of sale for the other proposed lots made no mention of the communal area or access. The necessary documents were lodged with the titles office and titles to the lots in the subdivision were issued to the developer. The condition requiring the transfer of the proposed lot for use as a communal area was not satisfied prior to registration. That was attributed to oversight on the part of the planning body when approving the subdivision plan for registration. As a consequence, the certificates of title made no reference to any right of access over, or use of, the proposed lot in favour of the other lot owners. The developer company was subsequently deregistered, and the lot designated for use as a communal area was sold to purchasers who constructed a house on the lot and erected fences on its boundaries. One of the other lot holders subsequently commenced proceedings seeking to enforce the right-of-way access to and across the designated communal area.
The relevant exception to indefeasibility in the Transfer of Land Act 1893 (WA) was for ‘any easements acquired by enjoyment or user or subsisting over or upon or affecting such land … notwithstanding the same respectively may not be specifically notified as encumbrances on [the certificate of title]’.[26] The Court held that the grant of an easement could not be inferred or implied as a term of the contract of sale given the formal written contract and the formal transfer, and no equitable easement had been created. All the contract of sale afforded was a right to terminate if the relevant condition of the subdivision approval had not been complied with prior to completion. The Western Australian legislation is in materially different terms to the corresponding Northern Territory provision, and has broader operation. Despite that breadth of operation, the Court in Kitching v Phillips observed (without having to determine the matter) that the exception to indefeasibility did not protect easements enforceable in equity by contract or estoppel – at least not against subsequent purchasers for value without notice.[27]
The relevant exception to indefeasibility in s 69(d) of the Real Property Act 1886 (SA) remains:
Where a right-of-way or other easement … has been omitted or misdescribed in any certificate, or other instrument of title …
KI Seaport Pty Ltd v Abstraxion Pty Ltd & Anor[28] is the only South Australian authority which deals with circumstances of this type. The relevant question in that case was whether an easement for electricity supply purposes created by the registration of a plan of subdivision was misdescribed, because it did not connect with an already existing easement on adjoining land which contained the three phase power supply. The Court found the evidence established that when the easement was created on subdivision it was intended to allow the transmission of three phase power from the already existing easement on the adjoining land. On that basis, the Court was satisfied that the easement had been ‘misdescribed’ in the relevant sense and directed the Registrar-General to correct the description of the easement on the certificate of title accordingly.
That decision involves two primary conclusions. The first is that the exception to indefeasibility extends to easements implied by common intention or necessity over land already under the Torrens system, and that such an easement was created. The second is that the implied easement, which connected the easement created by registration of the plan of subdivision with the already existing easement on the adjoining land, was not an unregistered easement but rather formed part of the registered easement because of misdescription. The reasons for decision do not contain any discussion of the authorities dealing with the scope of this particular exception to indefeasibility.
Even leaving aside the proposition that the implied easement was a registered interest, we are unable to accept that either conclusion has application to the circumstances under consideration in this case. Consistently with the authorities from New South Wales and Queensland, we consider that on proper construction the relevant exception to indefeasibility only arises in relation to land already under the Torrens system where an easement has been validly created by execution and registration of an instrument and the easement is omitted or misdescribed thereafter. We note in that respect that s 189(1)(c) of the Land Title Act is modelled on the Queensland provision, and they are in the same terms.
That approach also receives support from two textual and contextual factors. First, it would seem an anomalous result if the exception in s 189(1)(c) of the Land Title Act was limited to interests which have been registered but subsequently ‘omitted’, but extended to the ‘misdescription’ of interests said to have arisen or been created both inconsistently with and prior to the registration which created the easement. Second, and in the absence of a broadly worded exception as has been adopted in Victoria, Western Australia and Tasmania, that narrower approach is more consistent with the attainment of the object of the legislative scheme to confer indefeasible rights unless the circumstances fall squarely within one of the limited exceptions.
Application to the present circumstances
There was no anterior agreement between NABL and Suncode containing particulars of a proposed easement 20 metres wide, and no evidence of any pre-contractual dealings directed specifically and expressly to the width of the easement beyond the clause of the sale agreement making reference to a ‘ROW Area to allow access for vehicles and agricultural machinery at a width of 3 times the width of a sedan passenger motor vehicle’. The dealings concerning the different drawings sought only Suncode’s consent to relocate the proposed right-of-way from the location depicted on Drawing Number 11/8197/4 to the location depicted on Drawing Number 11/8197/2.
Even if the dealings between NABL and Suncode leading up to the registration of the subdivision and consolidation did constitute an agreement for the grant of an easement as depicted on Drawing Number 11/8197/2, they did not create an easement under the terms of the legislation.[29] That easement came into existence eo instante with registration of the plan of subdivision. That plan of subdivision was the only instrument relevant to creation of the easement. There was no other ‘instrument of easement’ (cf s 91(b) of the Land Title Act), or registered ‘deed of grant’ (cf s 91(a) of the Land Title Act).
Given that the easement only came into existence on registration of the plan of subdivision, it follows that the only ‘particulars’ of the easement are those shown in the plan of subdivision. There is only limited scope for the particulars of the easement to have been omitted or misdescribed in the relevant sense: specifically, if the particulars of the easement shown on the plan of subdivision were not transposed correctly onto the certificates of title issued for the two lots created by registration of the plan of subdivision, or if they were subsequently removed from or amended in the land register. That is not the case here. The right-of-way depicted in the drawing endorsed on Development Permit DP 12/0174 did not constitute the ‘particulars’ of an easement for the purpose of the exception in s 189(1)(c) of the Land Title Act because no easement in those terms was created in accordance with the Torrens legislation.
The fact that the Development Permit incorporated a survey plan in which the width of the right-of-way was 20 metres also did not create an easement in that configuration. Nor did it give rise to a requirement or entitlement running with the land that the plan of subdivision incorporate an easement of that specific width. For the reasons described in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd,[30] a subdivision consent does not, as a general proposition, operate to create a right in rem. The terms and operation of the planning scheme in the Northern Territory do not require any conclusion contrary to that general proposition. Section 61 of the Planning Act provides that a subdivision or consolidation of land must be done in accordance with a plan of survey approved under s 49(3) of the Licensed Surveyors Act. That provision relevantly requires that the Surveyor-General may approve a plan of survey if satisfied in respect of the matters referred to in s 62 of the Planning Act. That provision provides in turn that the Surveyor-General must not approve a plan of survey unless satisfied that consent has been given for the subdivision or consolidation, and that any works required to be carried out have been completed in accordance with the requirements of the consent authority.
Those provisions fall well short of establishing that a plan of survey must be precisely in accordance with a plan endorsed on a development consent. That is particularly so given that there is – as there was in this case – a long process of certification and approval by the relevant authorities of a draft plan of survey for subdivision after the original development consent has issued. The question whether a subdivision transaction is in contravention of the planning requirements is addressed by s 63 of the Planning Act. That section creates an offence for entering into a subdivision transaction in contravention of the scheme, and provides that a transaction purporting to subdivide in contravention of the scheme is void. Whether there has been a contravention will depend upon the extent to which any variation between an endorsed plan and the subsequent plan of subdivision has been endorsed by the relevant authorities, and the materiality of that variation. Those considerations were no doubt taken into account by the Registrar-General and the Surveyor-General in determining that there was no error in the land register due to the registration of Survey Plan LTO 2012/066; and that the Survey Plan had been approved and registered in accordance with the correct process and relevant approvals. It is those provisions, rather than indefeasibility provisions, which are concerned with the integrity of the planning scheme.
The prospective easement depicted in Drawing Number 2012/0064/1 was, at most, enforceable as between the immediate parties to its creation, but an easement in those dimensions was never recorded in the land register. In its relevant operation, the development approval imposed a conditional obligation upon Suncode to provide and register an easement over Section 5543 to provide access to Section 5544 from the Stuart Highway. NABL had an in personam right to apply for an enforcement order for the creation of such an easement in accordance with the development approval, although such action was unlikely given that the easement was for the benefit of Section 5544 and under the sale agreement NABL was to purchase Section 5543. So far as Suncode’s right or entitlement is concerned, it executed provisional Survey Plan LTO 2012/066 describing the easement with a width of 10 metres. Although Suncode might theoretically have claimed an entitlement to the benefit of an easement with a width of 20 metres, it did not choose to have that interest either registered or protected by caveat and it was defeated by the subsequent registration of Survey Plan LTO 2012/066. The development approval did not create a right in rem enforceable by the successive owners of Section 5544 against the title to Section 5543, and did not result in a misdescription for the purpose of the exception in s 189(1)(c) of the Land Title Act.
That being the case, there is also no occasion for an order for rectification pursuant to s 191 of the Land Title Act.
Disposition
As noted above, no formal orders have yet been made to give effect to the decision of the Supreme Court. For the avoidance of doubt, we make the following orders:
1.The appeal is allowed.
2.The determination and orders arising from the judgment of the Supreme Court delivered on 8 February 2022 are set aside.
We will hear the parties in relation to any consequential orders and costs if need be.
_____________________________
[1] The pre-existing PWC easement was described in Certificate of Title Volume 753 Folio 845 Dealing Number 743342 and in Drawing Number 10/6448/6 created by Earl James & Associates on 20 January 2011.
[2] Northern Australian Beef Limited v Bilba Capital Pty Ltd & Ors [2022] NTSC 10.
[3] Land Titles Act 1925 (ACT), s 58(1)(b); Real Property Act 1900 (NSW), s 42(1)(a1); Land Title Act 1994 (Qld), s 185(1)(c); Real Property Act 1886 (SA), s 69, Land Titles Act 1980 (Tas), s 40(3)(e); Transfer of Land Act 1958 (Vic), s 42(2)(d); Transfer of Land Act 1893 (WA), s 68(1A).
[4] Peter Butt, ‘Conveyancing and Property’ (2017) 91 Australian Law Journal 401, 406.
[5] Lynden Griggs, 'Omitted easements in the Torrens system: Devising a better strategy' (2018) 26 Australian Property Law Journal 333, 334.
[6] See Dobbie v Davidson (1991) 23 NSWLR 625, 649. In that case, Priestley JA notes that the words 'omission or misdescription of any right-of-way or other easement' appear for the first time in s 20 of the 1858 Torrens Statute and were repeated without change in each later corresponding section in the 1860 and 1861 Torrens Statutes.
[7] It would seem that this statutory prescription extends to circumstances in which an easement is purposefully but wrongly removed by the Registrar-General. In Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (2013) 247 CLR 149, the High Court held that the deliberate removal of an easement from the Register was not an 'omission' for the purpose of the relevant New South Wales exception to indefeasibility. However, the New South Wales legislation contains no statutory prescription of the term 'omission'.
[8] See, for example, Billiet v Commercial Bank of Australasia Ltd [1906] SALR 193; Golding v Tanner (1991) 56 SASR 482.
[9]P Carruthers and N Skead, "The prior certificate of title and wrong description of land exceptions to indefeasibility: Resolving the overlap" (2009) 17 APLJ 240.
[10] Overland v Lenehan (1901) 11 QLJ 59.
[11] Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606 at 610; CPR and Imperial Oil Ltd v Turta [1954] SCR 427.
[12] See, for example, Michael v Onisiforou (1977) 1 BPR 9356. See also Marsden v McAlister (1887) 8 NSWLR 300; Hamilton v Iredale (1903) 3 SR (NSW) 535.
[13] Stuy v BC Ronalds Pty Ltd [1984] 2 Qd R 578.
[14] The new scheme in Queensland also incorporated a statutory prescription of 'omission' to be where an easement: (1) was not recorded on the register when the land became registered; (2) was previously recorded in the register but currently is not recorded; and (3) was registered but later left of the certificate of title by error of the Registrar.
[15] Pike & Anor v Tighe & Ors [2016] QPEC 30.
[16] Pike & Anor v Tighe & Ors [2016] QPEC 30, [107]-[110].
[17] Tighe v Pike [2016] QCA 353.
[18] Tighe v Pike [2016] QCA 353, [12].
[19] Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [53]–[54].
[20] Rock v Todeschino [1983] Qd R 356.
[21] Hutchinson v Lemon (1983) Qd R 356. The Queensland legislation was subsequently amended to deny the benefit of registration to a purported easement appearing only in a registered plan: see Real Property Act 1861, s 119A; Grittner & Grittner v Hadley [2008] QSC 268.
[22] There is conflicting authority in New South Wales as to whether the term 'omission' is limited to something left out as a result of some failure on the part of the Registrar-General, or whether it has a broader meeting to include easements derived by prescriptive right but not subsequently noted on the title when the servient land was brought under the Torrens system: see Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618; Dobbie v Davidson (1991) 23 NSWLR 625; Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343.
[23] See James v Registrar General (1967) 69 SR (NSW) 361; Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618; and see generally Butt Land Law (3rd Edn, 1996) [2069], B Edgeworth, Butt’s Land Law (Lawbook Co., 7th ed, 2017), [12.750].
[24] The term 'validly created' is best seen as the adoption of Wallace P’s formulation that the exception extended beyond easements in existence before the land was brought under the Torrens statute, and extended to an easement which had been 'duly created' in accordance with the provisions of the Torrens statute but subsequently omitted: James v Registrar General (1967) 69 SR (NSW) 361, 368-369.
[25] Kitching v Phillips [2011] WASCA 19.
[26] Under the broad terms of this exception, all easements and public rights-of-way are given paramountcy over a registered proprietor's indefeasible title. The Victorian exception is in similar terms.
[27] Kitching v Phillips [2011] WASCA 19, [96]-[104]; relying on Milne v James (1910) 13 CLR 168; Barry v Heider (1914) 19 CLR 197; and Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81. The Tasmanian exception to indefeasibility in relation to easements is also broadly worded, but it has been held that equitable easements do not prevail over the interests of a bona fide purchaser for value without notice: see Clarence City Council v Howlin [2019] TASFC 1.
[28] KI Seaport Pty Ltd v Abstraxion Pty Ltd & Anor [2020] SASC 113.
[29] They were also insufficient to create an easement by implication in the configuration and width asserted by Bilba, but it is unnecessary to decide that matter having regard to the construction of s 189(1)(c) of the Land Title Act that we have adopted.
[30] Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at [53]–[54].
0
2
0