Seahaven Investments Pty Ltd v The Owners of Statton on Murray - [2024] WASC 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SEAHAVEN INVESTMENTS PTY LTD -v- THE OWNERS OF STATTON ON MURRAY [2024] WASC 465
CORAM:   LUNDBERG J
HEARD:   4 DECEMBER 2024
DELIVERED          :   5 DECEMBER 2024
FILE NO/S:   CIV 1943 of 2024
BETWEEN:   SEAHAVEN INVESTMENTS PTY LTD
Plaintiff
AND
THE OWNERS OF STATTON ON MURRAY, STRATA PLAN 43948
Defendant

Catchwords:

Real Property - Easement - Application to extinguish easement pursuant to s 129C(1) of the Transfer of Land Act 1893 (WA) - Easement granted over 40 years ago, providing for right to use area on the subservient tenement for sewerage and drainage purposes - Dominant tenement substantially redeveloped around 20 years ago - Subservient tenement soon to be redeveloped - Drainage and sewerage access no longer required or possible through the subservient tenement - Turns on own facts

Legislation:

Land Administration Act 1997 (WA), s 144
Transfer of Land Act 1893 (WA), s 129C

Result:

Order made that the easement be wholly extinguished.

Category: B

Representation:

Counsel:

Plaintiff	:	J C W Skinner
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Thomson Geer - Perth
Defendant	:	No appearance

Case(s) referred to in decision(s):

Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228
Davidson v Elkington [2011] WASC 29
Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281
Markos v O R Autor Pty Ltd [2007] NSWSC 810
Oleander Nominees Pty Ltd & Ors v The Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255
Parlapiano v The Registrar of Titles [2015] WASC 253
Pieper v Edwards [1982] 1 NSWLR 336
Re Miscamble's Application [1966] VicRp 81; [1966] VR 596
RK Roseblade & VM Roseblade and the Conveyancing Act (1964-5) NSWR 2044
Saldanha v City of Belmont [2018] WASCA 7
Sheppard v Smith [2022] NSWCA 167

Table of Contents

A. Introduction

B. The position of the defendant

C. Evidence and findings

D. Legislative framework and relevant principles

E. Disposition

Section 129C(1)(a) - change in user

Section 129C(1)(b) - agreement or conduct constituting abandonment or waiver

Section 129C(1)(c) - extinguishment will not substantially injure

F. Conclusion and orders

LUNDBERG J:

A. Introduction

The plaintiff is the registered proprietor of the land at 641 Wellington Street, Perth, which is more particularly described as Lot 130 on Diagram 11147, being the whole of the land contained within certificate of title volume 1116 folio 497 (Wellington Street Property). The Wellington Street Property is within the central business district.
Over 40 years ago, a sewerage and drainage easement was created which has, since that time, burdened the Wellington Street Property (Easement). The Easement was granted by a Deed of Easement dated 14 October 1982,[1] which was registered on the title on 17 March 1983, as C515248.[2] The Easement was transferred and granted as follows:
The Grantor does HEREBY TRANSFER AND GRANT to the Grantee as appurtenant to the Dominant Tenement the right to use for sewerage and drainage purposes such portion of the Servient Tenement as is coloured red on the plan attached hereto...upon the terms and conditions hereinafter contained.
[1] Foley Affidavit [5] and Attachment BRF-1.
[2] Foley Affidavit [6] and Attachment BRF-2.
The subservient tenement is the Wellington Street Property. The dominant tenement, that is the property which benefits from the easement, is the adjoining parcel of land to the south, namely 418 - 428 Murray Street, being the whole of the land now contained in Strata Plan 43948 (Murray Street Property).
The buildings and structures on the Wellington Street Property and the Murray Street Property, and the neighbouring locality as it existed on 20 March 2001, are depicted in the aerial image obtained by the plaintiff's solicitors from Landgate.[3] That image appears below, with the Wellington Street Property and the Murray Street Property marked with a 'W' and 'M' respectively. As will be seen, the Murray Street Property was substantially redeveloped after this image was taken.

[3] Foley Affidavit [8(a)] and Attachment BRF-4.

The plan which forms part of the Deed of Easement, and which depicts the Easement on the Wellington Street Property, is set out below.
The plaintiff contends that the Easement is now redundant and seeks relief from this Court to have the Easement declared as being extinguished or abandoned, or alternatively to order its removal.[4] The plaintiff relies upon the statutory mechanism in s 129C(1) of the Transfer of Land Act 1893 (WA) (TLA), which applies where land is burdened by an easement or a restrictive covenant. The plaintiff relies on each of the alternative bases set out in s 129C(1)(a), (b) and (c) of the TLA.
[4] Amended originating summons dated 15 August 2024.

B. The position of the defendant

The defendant, being the registered proprietor of the Murray Street Property, has not filed an appearance to the proceedings and has not sought to defend the relief which is sought. I am satisfied on the affidavit material that the defendant was properly served with the originating summons, and also with the supporting material which has since been filed by the plaintiff.[5]
[5] I refer to the affidavits of Samantha Anna Crkovsky affirmed 20 August 2024 and 17 September 2024, and the further affidavit of Brendan Foley affirmed 6 November 2024.
The plaintiff correctly acknowledges that, even though the defendant has failed to file an appearance or resist the proceedings, the plaintiff is nonetheless required to make out its case and to satisfy the Court that the statutory criteria have been satisfied.

C. Evidence and findings

In support of the relief which is sought, the plaintiff relies upon the affidavit of Brendan Reese Foley affirmed on 9 August 2024 (Foley Affidavit). Mr Foley is a lawyer with the law firm representing the plaintiff. Mr Foley is a special counsel with that law firm, and he also holds a bachelor’s degree in Urban and Regional Planning with Honours from Curtin University. Mr Foley deposes that he worked in private practice as a town planner before qualifying as a lawyer.
Within his affidavit, Mr Foley deposes to the comprehensive enquiries he has conducted with Landgate, with the City of Perth, and with the Water Corporation, among other entities, and he has attached to his affidavit a range of documents which explain the information which is available concerning the two properties and the Easement in question. I accept the matters set out in his affidavit and will rely upon that evidence for the purposes of assessing the relief which is sought by the plaintiff.
On the basis of the affidavit evidence presented by the plaintiff (putting to one side pars 45 and 46 of, and Attachment BRF-10 to, the Foley Affidavit, which the plaintiff did not rely upon), I am able to make the following factual findings in this proceeding.
The Easement was granted by the Deed of Easement in 1983. At that time, the Murray Street Property contained a low-level commercial building known as 'Dunlop House'. The Easement provided the Murray Street Property with access to stormwater and sewerage infrastructure that existed within the Wellington Street road reserve adjacent to the northern terminus of the Easement.
There is, however, no longer any stormwater or reticulated sewerage system located within the Wellington Street road reserve where it abuts the northern end of the Easement.
The Murray Street Property was subdivided and redeveloped in 2003 and 2004, which is around 20 years ago. The Murray Street Property now supports a multi-storey, mixed-use building and multi-level basement, which is now known as 'Statton on Murray'. It comprises a number of residential and commercial lots, including several below ground levels. The buildings and structures on the Murray Street Property, and the neighbouring locality as it existed on 1 December 2004 (not 2024 as noted in the image), are depicted in the further aerial image obtained by the plaintiff's solicitors from Landgate.[6] A copy of that image is below.

[6] Foley Affidavit [8(a)], and Attachment BRF-4.

As a consequence of the approvals issued by the City of Perth for the redevelopment of the Murray Street Property, all stormwater from the Murray Street Property is contained within the Murray Street Property. Further, all sewerage from the Murray Street Property is conveyed to the west via a Water Corporation reticulated sewerage system, which is located approximately one meter within the Murray Street Property's northern boundary (and, importantly, not via the Easement).[7]
[7] Foley Affidavit [8(c)] and Attachment BRF-6.
Further, the digging of the basement and construction of retaining piles as part of the redevelopment of the Murray Street Property (which occurred prior to 16 July 2003) severed any connection to the historical drainage line within the Easement. The drainage pipe from the Murray Street Pipe appears to have been blocked with concrete as the pipe enters the Wellington Street Property. Drainage is now undertaken from the Murray Street Property via a drainage system to the south, not through the Wellington Street Property.[8]
[8] Foley Affidavit [8(b)] and Attachment BRF-5.
The redevelopment of the Murray Street Property was completed by 3 November 2004, at the latest.
I accept therefore that, at least since the redevelopment of the Murray Street Property over 20 years ago, the Easement has not been used by the Murray Street Property for any drainage or sewerage purposes.
Turning then to the Wellington Street Property owned by the plaintiff, it is apparent that this property has recently been approved for redevelopment. The purpose of that redevelopment is a 16-storey mixed use building comprising ground floor commercial and student accommodation on the upper floors.[9] The plaintiff asserts, and I accept, that the existence of the Easement compromises the redevelopment as it runs roughly diagonally through the proposed building.
[9] Foley Affidavit [9] and Attachment BRF-7.

D. Legislative framework and relevant principles

On the basis of the above matters, the plaintiff seeks relief pursuant to s 129C of the TLA. That provision is found in div 3A pt IV of the legislation, which is headed 'Restrictive covenants and the modification, discharge and enforcement of restrictive covenants and easements'. The provision relevantly states as follows:
129C.Supreme Court’s powers as to easements etc.
(1) Subject to subsection (1a),[10] 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 —
(a) that by reason of any change in the user of any land to which the easement or the benefit of the restriction is annexed, or of changes in the character of the property or the neighbourhood or other circumstances of the case which the court or a judge may deem material the easement or restriction ought to be deemed to have been abandoned or to be obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or[11]
(b) that the persons of full age and capacity for the time being or from time to time entitled to the easement or to the benefit of the restriction whether in respect of estates in fee simple of any lesser estates or interests in the land to which the easement or the benefit of the restriction is annexed have agreed to the same being wholly or partially extinguished, discharged or modified or by their acts or omissions may reasonably be considered to have abandoned the easement or to have waived the benefit of the restriction wholly or in part; or
(c) that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement or to the benefit of the restriction.
…
(8) The costs of and incidental to an application made pursuant to the provisions of this section to the court or a judge shall not be awarded against the defendant or respondent in any event.
(9) This section does not apply to easements granted under section 144 of the Land Administration Act 1997.
[10] Sub-section (1a) is not relevant for present purposes.
[11] From a readability perspective, s 129C(1)(a) would benefit from, at least, a comma after the phrase 'judge may deem material', as is employed in the drafting of s 89(1) of the Conveyancing Act 1919 (NSW).
The Easement in question is not one granted under s 144 of the Land Administration Act 1997 (WA), being the provision identified in s 129C(9). That provision concerns easements granted by the Minister in respect of Crown land for specific purposes, such as the provision of pipes, conduits, cables, transmission lines, and other services.
As is apparent from the terms of s 129C(1) of the TLA, the provision confers a discretionary power on the Court to extinguish, discharge or modify an easement, either at the request of a landowner burdened or benefitted by the easement or restriction. The grounds on which this may be done are expressed disjunctively, in pars (a), (b) and (c). It is accepted that, even if the grounds identified in the provision are established, the Court retains a discretion to refuse to extinguish an easement: Fermora Pty Ltd v Kelvedon Pty Ltd.[12]
[12] Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281 [99] (Edelman J); Pieper v Edwards [1982] 1 NSWLR 336.
The purpose of the provision, as a whole, is to enable covenants which have no practical utility to the dominant land to be removed so as to clear the title of the servient land: Davidson v Elkington.[13]
[13] Davidson v Elkington [2011] WASC 29 [77] (Hall J).
The plaintiff has the burden of establishing the easement is obsolete or has been abandoned, or that the court's power should otherwise be exercised under s 129C of the TLA: Oleander Nominees Pty Ltd & Ors v The Owners of Lakeside Villas Strata Plan 14025.[14]
[14] Oleander Nominees Pty Ltd & Ors v The Owners of Lakeside Villas Strata Plan 14025 [2002] WASC 255 [6] (Hasluck J) (Oleander Nominees).
As to s 129C(1)(a) of the TLA, the provision on which the plaintiff places primary reliance, it must be said the text of the paragraph would benefit from some re-drafting to better elucidate its essential requirements. The text has been largely unchanged since it was inserted in the legislation in 1950. There are several permutations which may arise within this provision, which may be obscured by the dense nature of the drafting. As explained by the Court of Appeal in Saldanha,[15] the provision specifies a set of matters, the Court's satisfaction of which will empower the making of an order described in sub-section (1). The matters of which the court must be satisfied under s 129C(1)(a) are that:
(a)the easement ought to be deemed to have been abandoned or to be obsolete; or
(b)the continued existence of the easement would impede the reasonable user of the land without securing practical benefits to other persons; or
(c)the easement unless modified would so impede such user.
[15] Saldanha v City of Belmont[2018] WASCA 7 [96] - [97] (Mitchell and Beech JJA, Pritchard J) (Saldanha).
The Court must be satisfied of these matters by reason of one or more of the following circumstances:
(a)any change in the user of the land to which the easement is annexed; or
(b)changes in the character of the property or the neighbourhood; or
(c)other circumstances of the case which the court or a judge may deem material.
The words 'other circumstances which the court may deem material', have been described as admitting 'the widest field of evidentiary material': Markos v O R Autor Pty Ltd;[16] and RK Roseblade & VM Roseblade and the Conveyancing Act.[17]
[16] Markos v O R Autor Pty Ltd [2007] NSWSC 810 [90] (Austin J).
[17] RK Roseblade & VM Roseblade and the Conveyancing Act (1964-5) NSWR 2044, 2046.
The word 'obsolete' in the context of this provision includes 'no longer relevant to circumstances presently obtaining': Re Miscamble's Application.[18] There have been two different approaches adopted to this concept, referred to, in general terms, as the historical and present use approaches: Anascot Pty Ltd v Alcoa of Australia Ltd.[19] The 'historical' approach relates to an assessment of whether the grant has any value or whether the original purpose of the grant could still be achieved, while the 'present use' approach means either that the object of the easement had become incapable of fulfilment or that it serves no present useful purpose. As will be explained, the Court need not express any concluded view on these approaches within the context of the present application.
[18] Re Miscamble's Application [1966] VicRp 81; [1966] VR 596, 601 (McInerney J).
[19] Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228 [72] - [74] (Martin CJ, Buss P and Murphy JA).
The court will be slow to arrive at a conclusion that an easement is obsolete or has been abandoned, particularly given the provision permits the expropriation of private property, namely, the right of a land owner to the benefit of an easement or a restrictive covenant, without compensation: Oleander Nominees.[20]
[20] Oleander Nominees [36].
As to the language employed within s 129C(1)(c), the phrase 'substantially injure' refers to something other than a theoretical injury.[21] Further, it has been said that, in practical terms, in the long run, the test to be applied is not dissimilar to that to be applied in determining, under s 129C(1)(a), whether the continued existence of the restriction would secure 'practical benefits' to other persons: Anascot Pty Ltd v Alcoa of Australia Ltd.[22] In essence, s 129C(1)(c) requires an evaluative exercise to be undertaken as to whether the extinguishment of the easement would not substantially injure the persons entitled to the easement: Sheppard v Smith.[23]
[21] Parlapiano v The Registrar of Titles [2015] WASC 253 [5] (Kenneth Martin J).
[22] Anascot Pty Ltd v Alcoa of Australia Ltd [99] (Martin CJ, Buss P and Murphy JA).
[23] Sheppard v Smith [2022] NSWCA 167 [99] (Beech-Jones AJA, Gleeson JA and Basten AJA agreeing).

E. Disposition

I will address, in sequence, the three alternative bases set out in s 129C(1)(a), (b) and (c) of the TLA.

Section 129C(1)(a) - change in user

In my view, the Court can be satisfied that the first circumstance in s 129C(1)(a) is demonstrated on the evidence adduced by the plaintiff in this proceeding. That is, there has been a change, indeed, a significant one, in the user of the land to which the Easement is annexed. That is, to the Murray Street Property. That property was substantially redeveloped in 2003 and 2004. The low-level commercial buildings which previously existed on the Murray Street Property no longer exist. The land has been subdivided and redeveloped into a multi-storey, mixed-use building and multi-level basement. Through the redevelopment process, the necessity for access to the Wellington Street Property for sewerage and drainage purposes has fallen away.
Further, the evidence demonstrates there are other material circumstances which are relevant to the continuation, or otherwise, of the Easement which was granted in 1983. I have noted above that the drainage from the Murray Street Property is no longer required through the Wellington Street Property, and the drainage pipe has been obstructed for some years. Further, sewerage is managed through a system which travels to the west of the property, not through the Wellington Street Property. Accordingly, I accept there exist other circumstances which are material to the continuation of the Easement. It may also be, but it is unnecessary to reach a final conclusion on this point, that the broader changes to the drainage, sewerage and stormwater system in the locality represents a change in the character of the neighbourhood, for the purposes of s 129C(1)(a).

I am comfortably able to find that, by reason of the foregoing circumstances, the Easement for sewerage and drainage purposes through the Wellington Street Property has been abandoned or is obsolete and, indeed, has probably been of no utility for at least 20 years or so. That conclusion can be reached whether the issue is examined from a historical or from a present use perspective.
I am also satisfied that the continued existence of the Easement would impede the reasonable user of the Wellington Street Property, without securing practical benefits to other persons, most particularly the registered proprietor of the Murray Street Property and the persons who reside or work at that property.
The foregoing is sufficient for the Court to be satisfied that the power in s 129C(1) of the TLA may be exercised.

Section 129C(1)(b) - agreement or conduct constituting abandonment or waiver

Strictly speaking, given the conclusion reached in relation to par (a), it is unnecessary to consider whether the grounds in s 129C(1)(b) of the TLA have also been satisfied by the plaintiff. Given the submissions advanced by the plaintiff, I will make the following brief observations concerning this power.
The first point to note is that s 129C(1)(b) will be made out where either the persons of full age and capacity for the time being or from time to time entitled to the Easement have agreed to covenant being wholly or partially extinguished, discharged or modified, or by their acts or omissions, those persons may reasonably be considered to have abandoned the easement wholly or in part.
The first such matter is not established here.
The plaintiff contends, however, that the second matter has been demonstrated.
The plaintiff asserts that abandonment has been established in the present case not merely by the fact that the Easement has not been used for over 20 years, but as a consequence of three additional key factors.
The first factor is that the owner at the time of the redevelopment of the Murray Street Property severed the drainage line within the Easement by way of the construction of contiguous concrete piling to support a multi-storey basement, and capped the historical drainage line with concrete, such as to make it clear that it had at the relevant time a firm intention that neither it nor any successor in title (such as the defendant) should thereafter make use of the Easement.
The second factor is that the owner of the Murray Street Property at the time of the redevelopment of that property constructed drainage infrastructure on the Murray Street Property and connected the property to the Water Corporation sewer system within the Murray Street Property, such as to make it clear that it had at the relevant time a firm intention not to make use of the Easement.
The third factor which the plaintiff emphasises is that the defendant has now been the owner of the Murray Street Property for over 20 years and at no point has made known any intention to make use of the Easement, including after being made aware of these proceedings and deciding not to take part in them.
I accept the force of these matters. Collectively, these matters are sufficient for the Court to be reasonably satisfied that, through their acts or omissions, both the former owner of the Murray Street Property and the current owner (being the defendant), have wholly abandoned the Easement.

Section 129C(1)(c) - extinguishment will not substantially injure

Finally, I will briefly address the ground in s 129C(1)(c) of the TLA. The focus of the analysis required by this provision is whether the proposed extinguishment or discharge will not substantially injure the persons entitled to the Easement, that is the owner of the Murray Street Property. I have earlier explained how this concept is to be interpreted.
On the findings I have made, the continued existence of the Easement provides no continuing benefit to any person, as it has not been used for more than 20 years and cannot be used for its intended purpose. Accordingly, I accept the plaintiff's submission that, if the Easement was extinguished or discharged, there could be no injury, and will be no injury, either substantial or even theoretical, to any person currently entitled to the benefit of the Easement.

F. Conclusion and orders

While I accept that the grounds in each of s 129C(1)(a), s 129C(1)(b) and s 129C(1)(c) have been demonstrated by the plaintiff on this application, I prefer to rest the exercise of the power in sub-section (1) on the basis that the matters in par (a) are satisfied. That was the primary basis advanced by the plaintiff on the application and represents the most compelling case for extinguishment.
As to discretionary considerations, there are no circumstances present which would tend against the exercise of the power. In fact, on the evidence, there is every reason for the discretion to be exercised in favour of granting the relief which is sought given the Easement has become wholly redundant through the passage of time and the changing use of the land which it was intended to benefit.
For the foregoing reasons, I was satisfied at the hearing of the application that the relief sought be granted. I accordingly made an order to the effect that the Easement be wholly extinguished, pursuant to s 129C(1) of the TLA. The final orders were in the following terms:
1. The easement created by the deed of easement made 14 October 1982, registered as easement C515248 on the whole of the land at 641 Wellington Street, Perth, more particularly described as Lot 130 on Diagram 11147 being the whole of the land contained within certificate of title volume 1116 folio 497, be wholly extinguished pursuant to s 129C(1) of the Transfer of Land Act 1893 (WA).
2. Within 7 days of the date of this order, the plaintiff shall serve a copy of these orders on the Registrar of Titles
3. There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
5 DECEMBER 2024