Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025

Oleander Nominees Pty Ltd and others sought to extinguish an easement over their property in Mandurah, Western Australia, which was originally intended to provide access to a nearby street. The easement was created by a transfer dated 31 July 1957 and affected Lot 8 on Diagram 97613, which is the whole of the land in Certificate of Title Volume 2166 Folio 178. Over time, the right of way has become redundant as a public road, Shannon Road, has been constructed along its path. The plaintiffs, who acquired Lot 8 in 1999, wished to develop the land by constructing eight residential apartments and subdividing it. However, the easement encumbering the land impeded their plans. The owners of Lakeside Villas Strata Plan 14025, who were the beneficiaries of the easement, did not oppose the application.

The court had to determine whether the plaintiffs could extinguish the easement under s 129C of the Transfer of Land Act 1893. This provision allows for the extinguishment of easements or restrictions if certain criteria are met, such as the easement being obsolete, impeding reasonable use of the land without securing practical benefits, or if the parties have agreed to extinguish it. The onus of proving these criteria lay with the plaintiffs.

The court found that the plaintiffs had demonstrated that the easement had become obsolete as the public road had replaced its function. Furthermore, the continued existence of the easement impeded the reasonable use of Lot 8 without securing practical benefits to the defendant. The court also concluded that extinguishing the easement would not substantially injure the defendant, as they had an alternative means of access to Aileen Street. Therefore, the court allowed the application and ordered the easement to be extinguished.