Parlapiano v The Registrar of Titles
[2015] WASC 253
•15 JULY 2015
PARLAPIANO -v- THE REGISTRAR OF TITLES [2015] WASC 253
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 253 | |
| 15/07/2015 | |||
| Case No: | CIV:1743/2015 | 25 JUNE 2015 | |
| Coram: | KENNETH MARTIN J | 25/06/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Easement extinguished | ||
| B | |||
| PDF Version |
| Parties: | GIUSEPPE PARLAPIANO THE REGISTRAR OF TITLES |
Catchwords: | Real property Easements Right of way Application to extinguish easement in part, alternatively, entirely Numerous public roads now fulfil practical benefit originally conferred by right of way No further need for right of way Application for extinguishment of easement allowed in part Public notice to be advertised to provide any benefited persons chance to object to extinguishment in entirety |
Legislation: | Transfer of Land Act 1893 (WA), s 129C |
Case References: | Maio v City of Stirling [No 2] [2015] WASC 189 Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 Owners of Corrine Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE REGISTRAR OF TITLES
Defendant
Catchwords:
Real property - Easements - Right of way - Application to extinguish easement in part, alternatively, entirely - Numerous public roads now fulfil practical benefit originally conferred by right of way - No further need for right of way - Application for extinguishment of easement allowed in part - Public notice to be advertised to provide any benefited persons chance to object to extinguishment in entirety
Legislation:
Transfer of Land Act 1893 (WA), s 129C
Result:
Easement extinguished
Category: B
Representation:
Counsel:
Plaintiff : Mr T W Preece
Defendant : No appearance
Solicitors:
Plaintiff : Hale Legal
Defendant : No appearance
Case(s) referred to in judgment(s):
Maio v City of Stirling [No 2] [2015] WASC 189
Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255
Owners of Corrine Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1
- KENNETH MARTIN J:
(This is an edited version of reasons for judgment delivered ex tempore on 25 June 2015.)
Introduction
1 This is an application brought by the plaintiff, Giuseppe Parlapiano, who applies to the court for an order pursuant to s 129C(1)(c) of the Transfer of Land Act1893 (WA) (TLA) in respect of the easement T12048/1950, referred to as 'the easement', which currently burdens his land.
2 Mr Parlapiano seeks an order that the easement be extinguished in its entirety. Alternatively, he seeks orders extinguishing the easement in relation to his land, which is lot 736 on deposited plan 57697, being the whole of the land in Certificate of Title vol 2724 folio 132, defined as 'the property'. His property is also known as 156 Canna Drive, Canning Vale.
3 Towards the concept of easement extinguishment, s 129C(1)(c) of the TLA provides:
Subject to subsection (1a), where land under this Act is subject to an easement or to any restriction arising under covenant or otherwise as to the user thereof or the right of building thereon, the court or a judge may from time to time on the application of any person interested in the land burdened or benefited, or any local government or public authority benefited, by the easement or restriction, by order wholly or partially extinguish, discharge or modify the easement or restriction upon being satisfied …
4 Then a number of alternatives by of way of subsections present themselves. I do not cite s 129C(1)(a) or (b). They are not relied upon. But, relevantly, s 129C(1)(c) provides in these terms, and is relied upon presently:
that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.
5 The provisions within s 129C(1) are expressed disjunctively. Hence, to enliven my powers to extinguish the easement by virtue of s 129C(1), it is sufficient that I am satisfied of the criteria present under s 129C(1)(c). In other words, I need not be satisfied of the criteria under s 129C(1)(a) or s 129C(1)(b).
6 Approximately one year ago, on 18 August 2014, a separate application was made by way of originating summons in action CIV 2168 of 2014 Tan & Ors v Registrar of Titles. In that action, a series of plaintiffs, Messrs Yun Yi Kenneth Tan and others, sought a similar extinguishment concerning their land which was affected by the same easement burden. That application was served upon the Registrar of Titles. However, the Registrar took no part in that action, effectively agreeing to be bound by whatever decision the court had made. The plaintiffs in that earlier action sought the extinguishment of this easement in respect of their lots 738, 740, 743 and 744.
7 There was no opposition to that application at the time, which likewise was made under s 129C(1)(c).
8 On that present application I had the benefit of an affidavit sworn by a Mr Ian Cowie. Mr Cowie swore, as the CEO of the relevant local authority, that is, the City of Gosnells, that the City, in effect, supported the Tans' application that the easement be extinguished in its entirety. He also added, at par 3 of that affidavit:
The City of Gosnells has no objection to the easement being extinguished in its entirety as the easement serves no useful purpose.
9 Now, effectively 12 months later, I am faced with a similar extinguishment application by Mr Parlapiano, who proposes to develop his lot 736, of which he is the sole registered proprietor, under a proposal which envisages subdivision and development as explained in a series of plans which he appends to his affidavit, sworn on 11 May 2015.
10 Mr Preece, for Mr Parlapiano, took me to diagrams at page 10 of that affidavit, which effectively juxtapose what Mr Parlapiano has proposed for a development on lot 736 in terms of a restaurant and an apartment development with the present vacant state of the lot.
11 As was the case on the previous application involving the Tans, the Registrar of Titles has been served, but has informed the court that she does not wish to participate, other than by effectively being advised about the outcome and given an opportunity to make submissions concerning costs should any issue with respect to costs arise. That position was communicated by way of a letter sent to the court by the Registrar of Titles dated 10 June 2015.
12 On the basis a picture tells more than a thousand words, I will append to these reasons a copy of the deposited plan 57697 (marked as (A1)). It shows, marked in the colour red, lots 738, 740, 743 and 744. Those red markings indicate the coverage of the easement in question here. The north-eastern corners of those lots were the subject of the extinguishment orders that I made last year in the Tan matter.
13 Mr Parlapiano seeks, as regards his lot 736, a similar order with respect to the extinguishment of the part of the easement seen marked in green, again at the top north-eastern border of his lot 736.
14 I have already mentioned Mr Cowie's observation that the easement (created in 1950) is now effectively redundant. The easement, by way of carriageway, may have been of some utility to the owners of the original lots to the south-east of Nicholson Road. There might then have been some utility in allowing an undivided owner of a block in that area holding the right, effectively, to traverse to an exit point at times where there were very limited, if any, public roads available in that then undeveloped area of Perth.
15 However, the advance of 65 years has seen very considerable urban development in this area. Now, in 2015, one can see that to the north-east of the relevant blocks, including lots 732 through to 736, and then lots 737 through to 745, is a public road, Canna Drive, which extends to another road, Cargeeg Road, which travels roughly in a north-easterly direction intersecting with Garden Street. To the south, Cargeeg Road intersects Warrilow Loop, and then, as regards lot 736, one can see that it has, in terms of access and egress, not only Canna Drive but also Scupin Lane, which effectively runs in a north-easterly direction as well. And at the bottom of lots 732 through to 736, that is, to the south-west, there is Grapham Lane providing access and egress for those lots.
16 In terms of what are now multiple lots in, clearly, a divided and much more urbanised area, the mechanisms for access and egress to the east or west or north or south, present as well established, via egress points to Nicholson Road off Grapham Lane, to the north-east via Canna Drive, and via Cargeeg Road to Garden Street or via Grapham Lane through to Cargeeg Road. All properties in that area look to be well serviced by roads in terms of accessibility and obtaining egress from those lots.
17 There is overwhelming substance then in the observation by Mr Cowie in his affidavit in the Tan proceedings that this easement of carriageway now serves no useful purpose. It reflects, as I have observed, an access and egress scenario conceived back in 1950, when the road access situation as regards this general area was extremely undeveloped - in contrast to the multiple routes of access and egress via public roads now available.
18 The purpose of s 129C(1)(c) is to ensure the preservation of property rights, not to facilitate the use of land in the best interests of the community (Oleander Nominees Pty Ltd v Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 [33]; Owners of Corrine Court 290 Stirling Street Perth Strata Plan 12821 v Shean Pty Ltd [2000] WASC 181; (2000) 23 WAR 1 [102], and cited recently in Maio v City of Stirling [No 2] [2015] WASC 189 [100]). In other words, it is not sufficient to establish that an easement in question impedes 'reasonable user'. It is also necessary to show that such impediment exists without securing practical benefit to the persons with the benefit of the easement. And 'substantially injure' in the context of s 129C(1)(c) means not a 'theoretical injury', 'but something which is real and has a present substance' (Oleandar [49]).
19 The facts of this case quite closely mirror those that presented before Hasluck J in Oleandar (see [8] - [20] for the background information to that case). Therethe plaintiffs were registered proprietors as tenants in common in equal shares of a piece of land in Mandurah that was subject to the burden of a right of way created in 1957. The dominant land with benefit of that easement was in close proximity to, but not contiguous with, the servient land affected by the easement. Over time, as is the case in presenting circumstances, that right of way ceased to be of use owing to the construction of new roads in the area. The plaintiffs in those proceedings sought to develop their property by constructing eight residential apartments and subdividing the lot by the registration of a strata plan for subdivision. They were not able to do so while the old easement remained in place over their land.
20 Hasluck J, having considered the relevant legal principles and the evidentiary matrix in that case, determined that the practical benefit provided by the easement, it being a right of way, had ceased to exist - owing to the availability of other public roads in the area providing the same practical benefit. Accordingly, the easement represented no practical benefit to those who might benefit from the easement. It was, therefore, determined that the extinguishment of that easement would not substantially injure any persons who benefited from the easement ([45] - [52]).
21 Likewise, I am satisfied towards present circumstances that it is fully appropriate I issue an order extinguishing that part of the easement over Mr Parlapiano's lot on the basis, as the plaintiff submits, that his 'reasonable use' is impeded, ie, Mr Parlapiano's proposed strata development. But it is also clear that the easement now no longer serves any useful purpose, providing no practical benefit, and thereby that its extinguishment would not substantially injure any person, at least as regards lot 736.
22 I am also prima facie satisfied that this entire easement has now, in 2015, effectively become redundant. Hence, I am minded to make an order for its complete extinguishment. I know the position of the local authority favouring that course, as well as, to date, the effective acquiescence of the Registrar of Titles. This is the second application in 12 months seeking to have the easement, or some portion of it, extinguished. Similar extinguishment applications are almost certainly to be forthcoming at a later time by other lot holders pointing out, in effect, the obvious, which is that this easement no longer serves any useful purpose.
23 However, before making the order extinguishing the easement in its entirety, I propose, as regards any other lots that might be affected by a global extinguishment of this easement, to require the plaintiff to place a public advertisement in the local newspaper, the Examiner, essentially notifying the community of the proposed course this court is considering with respect to extinguishing the easement for good. Anyone potentially benefiting from or burdened by the easement will have a period of 28 days after the advertisement in the Examiner within which to lodge an objection to that proposed extinguishment course, in which event I would then hear such objections, if any, at a convenient time.
24 Otherwise, it seems to me, in the absence of any forthcoming objection, that the easement has served its useful purpose, and should be ended. I attach a draft form of such a letter to these reasons (marked as (A)).
25 Accordingly, I make the following orders with respect to the easement:
1. Easement T12048/1950 be extinguished from Lot 736 on Deposited Plan 57697 and being the whole of the land in Certificate of Title Volume 2724 Folio 132.
2. Subject to allowing a period of 28 days to elapse after the public advertisement in the local newspaper for the Shire of Gosnells ('The Examiner') of a notice in the terms similar to those attached and marked (A), that absent any written objection being received by the plaintiff's solicitors from a person benefited by what remains of easement T12048/1950 within that 28-day period, that easement T12048/1950 shall be extinguished in its entirety.
3. The plaintiff shall serve these orders upon the Registrar of Titles.
ANNEXURE 1
PUBLIC NOTICE
REMOVAL OF EASEMENT
- An action has been commenced by Mr Giuseppe Parlapiano in the Supreme Court of Western Australia, being action CIV 1743 of 2015, against the Registrar of Titles for orders that easement T12048/1950 (which affords rights of carriageway across parts of land) be extinguished in its entirety.
Orders have already been made by the Supreme Court of Western Australia extinguishing parts of this easement in respect of the lots 736, 738, 740, 743 and 744 on Deposited Plan 57697. This is explained in the reasons Parlapiano v The Registrar of Titles [2015] WASC 253 published by Justice Kenneth Martin on 15 July 2015 and accessible via:
Any person benefited by what remains of the easement as it remains and who wishes to object to the easement being extinguished in its entirety has the opportunity to lodge a written notice of objection and their reasons for their objection at: Hale Legal, 5/5 Barrack St, Perth WA, 6000.
Absent a receipt of any written notice by an objector holding such an interest within 28 days from publication of this notice, the Supreme Court of Western Australia has made orders on 25 June 2015 that all of easement T12048/1950 referred to in this notice will then be extinguished in its entirety.
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