Shoreline Management Pty Ltd ATF Shoreline Development Trust v Registrar of Titles
[2023] WASC 305
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SHORELINE MANAGEMENT PTY LTD ATF SHORELINE DEVELOPMENT TRUST -v- REGISTRAR OF TITLES [2023] WASC 305
CORAM: HOWARD J
HEARD: 7 AUGUST 2023
DELIVERED : 7 AUGUST 2023
PUBLISHED : 11 AUGUST 2023
FILE NO/S: CIV 1872 of 2023
BETWEEN: SHORELINE MANAGEMENT PTY LTD ATF SHORELINE DEVELOPMENT TRUST
Plaintiff
AND
REGISTRAR OF TITLES
First Defendant
CITY OF COCKBURN
Second Defendant
Catchwords:
Where plaintiff's construction encroached on an Easement - Application to the Court to have an Easement modified - s 129C(1) of the Transfer of Land Act 1893 (WA) - Whether parties are relevantly entitled to the Easement - Whether modification of an Easement will injure parties entitled to the Easement - Application allowed
Legislation:
Transfer of Land Act 1893 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr C P K Russell |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | DLA Piper |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Cases referred to in decision:
Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228
Montague Holdings (INT) Pty Ltd v Worth [2018] WASC 56
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
HOWARD J:
(This judgment was delivered extemporaneously on 7 August 2023 and has been edited for clarity.)
The Application
The plaintiff makes an urgent application by Originating Summons filed on Friday afternoon, 4 August 2023 to modify an easement N895424 (Easement).
The Registrar of Titles is the first defendant, and the City of Cockburn is the second defendant.
The two defendants to the Originating Summons have been served. The Registrar of Titles has indicated, by letter dated 7 August 2023, that he does not intend to enter an appearance and agrees to abide by any orders made by the Court.
Perhaps less helpfully that letter suggests if the Court intended to make any orders that involved or required the involvement of the Registrar, then it would be advisable for the Registrar to review the proposed orders. With great respect, on a matter being heard urgently that is not especially helpful to the Court.
In relation to the second defendant, there is a letter from its solicitors of today's date indicating it will abide by any order of the Court, save any order under which it may be liable to pay any party's costs and offering to file a formal submitting appearance if required.
I do not require either defendant to enter an appearance, given that they are both sophisticated parties who have had notice of the application, and have understandably decided they do not need to enter an appearance or be heard.
The application as made was supported by an affidavit of Mr Lloyd Richard Clark made 4 August 2023 (First Clark Affidavit), and an affidavit of Ms Amanda Ruby Spagnolo made 4 August 2023. All dated 4 August 2023, there were: submissions, a letter to the Principal Registrar, a Memorandum of Proposed Orders, and a Certificate of Urgency (I will come back to the Certificate of Urgency).
Today the material in support of the application was supplemented by a second affidavit of Mr Clark made 7 August 2023 (Second Clark Affidavit).
The plaintiff seeks relief in terms of Order 1 of the Memorandum of Proposed Orders:
An order pursuant to section 129C(1)(c) of the Transfer of Land Act 1893 (WA) that Easement N895424 (Easement) be modified to reduce the height of that part of the Easement burdening Lot 802 on Deposited Plan 412831 and identified with the letter 'D' on Deposited Plan 412831 by the area as shown and marked with the words 'Portion of Easement to be Surrendered' on Deposited Plan 426309 a copy of which is attached to these orders and marked 'A'.
The modification to the Easement appears minor: it would reduce the Easement's height by between 14 mm and 89 mm along part of its length.
The Factual Background
On 12 June 2023, the plaintiff lodged an application with the Landgate to register Strata Plan 83303; which would subdivide the current Lot 802 by way of strata title into 28 apartments.
Lots 801 and 803 are adjacent to 802. Lot 801 lies north of Lot 802, on which there are 16 townhouses. Lot 803 lies west of Lot 802 and has not been developed yet, and is owned by the plaintiff.
Landgate has not registered the Strata Plan 83303 because of the Easement, which appears as part of LRC-8 starting at page 66 of the First Clark Affidavit. This instrument grants an easement by the plaintiff in favour of the City of Cockburn which is said to be the grantee in respect of what is described in the Easement as a Rubbish Easement and as a Carriageway Easement.
Without reciting in detail what has passed between the plaintiff and Landgate, it appears from the affidavit material and submissions filed by the plaintiff, that when the structure was built on Lot 802, there was an encroachment into the Easement. There is a structural beam that has been built, indicated as 'A' on the annotated photo in LRC-30 of the Second Clark Affidavit, and a pipeline which is apparent on the annotated photo in LRC-31 of the Second Clark Affidavit.
In short, the beam and pipeline indicated in LRC-30 and LRC-31 of the Second Clark Affidavit intrude into the top part of the airspace reserved by the Easement.
The affidavit material filed by the plaintiff indicates that when detected at an 'as-built' inspection, the encroachment was brought to the attention of the City of Cockburn. It appears that the City of Cockburn has consistently taken the view that, notwithstanding that encroachment, there was enough room for the City to manoeuvre its rubbish trucks into that part of the Easement, which is described as 'D' on the deposited plan 412831 which is part of LRC-4 starting on page 39 in the First Clark Affidavit (Easement Area D).
On that basis it appears that throughout the City of Cockburn has had no difficulty with the modification of the Easement to allow the encroachment of the structural beam and the pipeline.
There have been then discussions between the plaintiff and Landgate. Landgate has over a period of time requisitioned the plaintiff in relation to what Landgate has treated, it appears, as an application by the plaintiff pursuant to s 129B of the Transfer of Land Act 1893 (WA) to modify the Easement.
Landgate has requisitioned for the provision of various consents so that Landgate might deal with the matter under s 129B(1) of the Transfer of Land Act. The sticking point are some outstanding consents which are summarised (from the evidence) at [53] of the plaintiff's submissions, and are described as the following:
53.1The owners of Lot 2, 3, 14 and 16;
53.2The mortgagees of Lots 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16; and
53.4the Strata Company.
(Remaining Lot 801 Parties)
I should note in the plaintiff's material, Lot 801 is variously described as the M/31 Terrace Homes, Stage 1, or Survey Strata Plan 76380. Notwithstanding those various descriptions I understand them to be all referring to the same parcel of land, in respect of which I have referred to the outstanding consents as the Remaining Lot 801 Parties.
It is plain from the plaintiff's materials that efforts have been made to obtain consents from all Lot 801 parties being the owners, any mortgagees and the Strata Company for Strata Plan 76380. Some have been obtained, but not all.
The application is concerned only with that part of the Easement described as the Rubbish Easement. The plaintiff, having not been able to have Landgate issue the subdivided lots, has applied pursuant to s 129C(1)(c) of the Transfer of Land Act.
I accept the plaintiff is a person interested in the land burdened or benefited by the Easement, and accordingly is within the provision to apply to the Court to have the Rubbish Easement (part of the Easement) modified.
The Easement
The relevant terms of the Easement instrument contained in LRC‑8 to the First Clark Affidavit are as follows:
1.Grant of Easement
The Grantor, being registered as the proprietor of an estate fee simple in the land described in Item 1 of the Schedule hereto (Servient Tenement) subject to the encumbrances notified hereunder in Item 2 of the Schedule HEREBY TRANSFER AND GRANTS to the grantee under and by virtue of the provisions of section 195 of the Land Administration Act 1997 an access easement for the benefit of the grantee with the full and free right, liberty, power and authority from time to time and at all times hereafter to with the full and free right, liberty, power and authority from time to time and at all times hereafter to:
(a)Go, pass and repass for all purposes and either with or without vehicles, machinery and tools over, along and across those portions of the Servient Tenement as are delineated and marked with the letters 'C', 'D' and 'E' on Deposited Plan 412831 (Rubbish Easement) for the purposes of collecting waste from the Servient Tenement and land abutting the Servient Tenement.
I note that its terms are at a relatively high level of generality in the sense that the Servient Tenement is described generally as each of Lot 801, Lot 802 and Lot 803 (having regard to the Schedule at page 72 of the First Clark Affidavit). But as is apparent from LRC-4 on page 39 in the First Clark Affidavit, which is deposited plan 412831, and the submissions of counsel this afternoon, it appears that the collection of rubbish from Lot 801 is not dependent on the Easement Area D.
While Lot 802 is described as part of the Servient Tenement, for all practical purposes it does not fit that description for the Rubbish Easement vis-a-vis to Lot 801.
The matter which has taken the most time with the application and has done since it was filed on Friday last, is the question of whether the Remaining Lot 801 Parties need to be served under this application under s 129C(1)(c) of the Transfer of Land Act.
That question comes to whether it can be said that the Remaining Lot 801 Parties are relevantly entitled to the Easement under s 129C(1)(c) of the Transfer of Land Act.
The position Landgate has adopted, as I understand it, is that the easement concerned is Easement N895424 and that the Remaining Lot 801 Parties have an entitlement to a part of the Easement. Therefore they were interested in the land affected by such covenant within the meaning of s 129B(1) of the Transfer of Land Act.
Consideration
The application before the Court this afternoon is under s 129C(1)(c) of the Transfer of Land Act, therefore the question is whether the Remaining Lot 801 Parties are entitled to the Easement or to the benefit of the restriction.
In my view, the Remaining Lot 801 Parties are not relevantly entitled to the Easement within the meaning of that statutory provision. Whether or not there is an easement across the land identified as Easement Area D, will not necessarily or practically effect the rubbish collection from Lot 801 when considering deposited plan 412831 on page 39 of the First Clark Affidavit. There is access for the City of Cockburn's rubbish trucks off Reinforcement Parade going north and accessing Lot 801 by that part of the Easement, which is described as 'C' on the same deposited plan.
I accept in reaching that view I have made a constructional choice in that I have considered the proposed modification to the Easement as being more particularly the modification as sought in the orders to that part at Easement Area D, rather than being modification of the whole of the Easement in N895424.
If I am wrong in that constructional choice, then in all of the circumstances I would not require that the Remaining Lot 801 Parties be served, and that is for three reasons.
The first reason is that in all of the circumstances I cannot imagine that any Remaining Lot 801 Party joined, who appeared in the Court and opposed the modification, would be able to satisfy the Court on any basis that there was a possibility that their interests would be substantially injured within the meaning of the provisions as the modification to the Easement is minor.
I do not need to consider the authorities in any detail with the exception of noting Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228 at [67], [80], and [84] - [88], and the decision of the Master in Montague Holdings (INT) Pty Ltd v Worth [2018] WASC 56 at [9].
In referring to Anascot at [67]. I am conscious that the onus is on the plaintiff in this application and in saying that I could not imagine that a Remaining Lot 801 Party could satisfy the Court, I am not intending to reverse that onus. I am dealing rather with the question of whether they ought to be served.
The second reason is that, as counsel submitted, the City of Cockburn may properly be considered to be responsible for and looking after the interests of the Remaining Lot 801 Parties insofar as they benefit from the Rubbish Easement, and as I have said the City of Cockburn does not wish to be heard and has consented to the modification of the Easement.
The final reason is that I accept the submission put by counsel that when one has regard to the well-established principles as to whether it is necessary to join a party, applying the principles which appear in the Full Federal Court decision of News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524B - 525C, then the practical realities of this case and the nature and value of the rights, if any, of the Remaining Lot 801 Parties, in my view, militate against the necessity of them being joined.
If, contrary to my view, the Remaining Lot 801 Parties were 'entitled to the easement' (within s 129C(1)(c) of the Transfer of Land Act) then given the minor nature of the modification sought, applying the cases I have cited, I would find that the Remaining Lot 801 Parties will not be 'substantially injured' by the proposed modifications.
Certificate of Urgency
As I suggested in argument, I am not persuaded that this was a case where it was appropriate for a Certificate of Urgency to be made. The Court takes Certificates of Urgency seriously and allocates resources of the Registry, Listings and Judges for hearing matters which have been so certified. I do understand the thinking that was articulated in argument as to why the Certificate of Urgency was made. I am not intending to be in any way critical of counsel.
Notwithstanding that, in all of the circumstances, my view is that there were better and more appropriate ways for the matter to be moved more quickly in this Court than would be usual, rather than the making of the Certificate of Urgency.
As will be apparent, notwithstanding that, the Court has dealt with the matter on the next business day after its filing, but the significance to the Court of a Certificate of Urgency being made cannot be lost sight of.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
11 AUGUST 2023
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