The Owners of Oceanview Apartments Strata Plan 5210 v The Owners of Bluewater Strata Plan 62323
[2018] WASC 78
•16 MARCH 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE OWNERS OF OCEANVIEW APARTMENTS STRATA PLAN 5210 -v- THE OWNERS OF BLUEWATER STRATA PLAN 62323 [2018] WASC 78
CORAM: ACTING MASTER STRK
HEARD: 9 JUNE 2017
DELIVERED : 16 MARCH 2018
FILE NO/S: CIV 2765 of 2016
BETWEEN: THE OWNERS OF OCEANVIEW APARTMENTS STRATA PLAN 5210
Plaintiff
AND
THE OWNERS OF BLUEWATER STRATA PLAN 62323
First DefendantREGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property - Easement - Application to extinguish easement - Section 129C(1) Transfer of Land Act 1893 (WA) - Turns on own facts
Legislation:
Transfer of Land Act 1893 (WA), s 129C(1)
Result:
Plaintiff's action dismissed
Easement not discharged
Category: B
Representation:
Counsel:
Plaintiff: Mr P McGowan
First Defendant : Mr M Mony de Kerloy
Second Defendant : No appearance
Solicitors:
Plaintiff: GV Lawyers
First Defendant : Mony de Kerloy Barristers and Solicitors
Second Defendant : No appearance
Case(s) referred to in judgment(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
Montague Holdings (Int) Pty Ltd v Worth [2018] WASC 56
Oleander Nominees Pty Ltd v The Owners of Lakeside Villa Strata Plan 14025 [2002] WASC 255
Parlapiano v The Registrar of Titles [2015] WASC 253
Pieper v Edwards [1982] 1 NSWLR 336
Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925
Saldanha v City of Belmont [2018] WASCA 7
Tujilo v Watts [2005] NSWSC 209; (2005) 12 BPR 23,257
ACTING MASTER STRK: By proceedings commenced by originating summons, the plaintiff seeks that the easement the subject of Transfer of Land document B189606 created on 30 June 1976 (the Easement) be extinguished.
The application is opposed by the first defendant. The Registrar of Titles has taken no part in the action.
My conclusion is that my powers to extinguish the Easement by virtue of s 129C(1) of the Transfer of Land Act 1893 (WA) (TLA) are not enlivened. In these reasons I deal with the following matters:
1.Factual background:
(a)Creation of the Easement;
(b)The development of Lot 25 and Lot 9.
2.The relief sought by the plaintiff.
3.Applicable principles.
4.Ground 1 - s 129C(1)(a) of the TLA.
(a)Has there been any change in the user of the land to which the Easement is annexed?
(b)Have there been changes in the character of the property or neighbourhood?
(c)Are there other circumstances of the case which the court may deem material?
(d)Ought the Easement be deemed to have been abandoned or to be obsolete?
(e)Would the continued existence of the Easement impede the reasonable user of the land without securing practical benefits to other persons?
5.Ground 2 - s 129C(1)(b) of the TLA.
6.Ground 3 - s 129C(1)(c) of the TLA.
7.Conclusion.
Factual background
In support of its application, the plaintiff relies on the affidavit of Michael Joseph Needham sworn on 6 October 2016 (the Needham affidavit). Mr Needham is the registered proprietor of a lot within the strata scheme administered by the plaintiff.
In opposition, the first defendant relies on the affidavit of Gary Warren Dempsey sworn on 9 December 2016 (the Dempsey affidavit). Mr Dempsey is a director and the project manager of the company which developed the Bluewater Apartments, the subject of Strata Plan 62323, and is an experienced builder and developer. The company is also the registered proprietor of strata lots within the strata scheme administered by the first defendant.
No objection was taken to either affidavit. My findings of the facts below derive from these affidavits. In relation to important facts discussed below, I indicate the source of the facts.
(a) Creation of the Easement
The creation of the Easement is described in the Needham affidavit. In the main, the evidence of Mr Needham in relation to the creation of the Easement is not disputed by the first defendant and where the evidence of Mr Dempsey differs, the differences are not material to the determination of the application.
By transfer B189606 dated 30 June 1976, the then owner of property situated at 1 Reserve Street Scarborough, being lot 24 on diagram 50077 (Lot 24), granted in favour of the registered proprietor or proprietors of lot 25 on diagram 50077 (Lot 25), a right of carriage way over a portion Lot 24 in terms of the Ninth Schedule of the TLA.[1]
[1] Needham Affidavit [5] ‑ [7], A1.
The Ninth Schedule of the TLA, as it related to the creation of a right of carriageway in a transfer of freehold land, provided as follows:
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and coloured brown on the said map.
Transfer B189606 shows that the Easement is an area that is 5 m wide and 31.48 m long, from Reserve Street to Lot 25 (the Easement Area).
The purpose of the Easement was to permit access to a motel on Lot 25, as access from West Coast Highway was not practicable due to a steep bank on the eastern side of Lot 25 onto West Coast Highway. To facilitate access, the Easement Area was bituminised.[2]
[2] Needham Affidavit [11], A3.
The plaintiff is the strata company in respect of a strata scheme for a property located at Lot 24, registered on 26 July 1977.[3] On the schedule of encumbrances on the strata plan, the Easement created by transfer B189606 was recorded.[4]
[3] Needham Affidavit [8], A2.
[4] Needham Affidavit [8], A2, page 24.
Diagram 50077 from Landgate, a survey of which shows the dimensions of Lots 24, 25 and adjacent Lot 9, together with the Easement, is found at annexure A3 of the Needham Affidavit, and is reproduced at schedule 1 to this judgment.
A photograph of the Easement as at about October 2010, which shows a bitumen driveway leading to a motel constructed on Lot 25 is found at annexure A11 of the Needham Affidavit.
(b) The development of Lot 25 and Lot 9
Lot 9 is adjacent to Lot 25 and the Easement Area. There is some evidence of various offers being made to purchase the Easement Area by the then owner of Lot 25 in about 2004, which offers were not accepted by the plaintiff.
In or around 2010, Bluewater Living Pty Ltd purchased Lot 25. At the time of purchase, the development on Lot 25 was known as West Coast Seas Holiday Apartments and there is some evidence that the development on Lot 25 comprised apartments and did not operate as a motel.[5]
[5] Dempsey Affidavit [7(3)(a)].
Bluewater Living Pty Ltd also purchased Lot 9 around the same time as it purchase Lot 25. Before Lot 9 was purchased by Bluewater Living Pty Ltd, it had been sub‑divided into three. In the same year, the process of amalgamating Lot 25 with the land that was Lot 9 commenced. The amalgamation was completed after planning approval was given in August 2011, and the amalgamated lot was thereafter the subject of strata title development which created strata plan 62323 on the new lot, being lot 800 on deposited plan 69037 (the Amalgamated Lot).[6]
[6] Needham Affidavit [19]; Dempsey Affidavit [6(a)-(c)].
In about August 2010, a further offer to purchase the Easement Area was made to the plaintiff and rejected. In about September 2010, a proposal to use the Easement Area as part of the development of Lot 25 was also rejected by the plaintiff.
In about October 2011, the building on Lot 25 was demolished.[7] By about July 2012, the bitumen on the Easement Area was removed.[8]
[7] Needham Affidavit [29].
[8] Needham Affidavit [32], A18.
The first defendant was registered on or around 15 May 2014 and is a strata company.[9] The first defendant consists of 36 strata lots and common property and is situated at 5 Reserve Street, Scarborough (that is, at the Amalgamated Lot). The strata scheme is known as 'Bluewater'.[10]
[9] Needham Affidavit [39].
[10] Needham Affidavit [40].
The Strata Plan of the first defendant sets out under the Interests and Notifications panel that there is a right of carriageway arising from document B189606, which burdens Lot 24, for the benefit of Lots 2, 4, 6, 10, 14, 19 ‑ 36 inclusive and common property. The common property comprises principally the swimming pool and gymnasium which are for the use of all lots in the apartments. They are located on the ground floor level of the portion of the building located on the former Lot 25.[11] There is no benefit noted in favour of Lots 1, 3, 5, 7 ‑ 9, 11 ‑ 13, 15 ‑ 18 inclusive, which lots are located in that portion of the building located on the former Lot 9.[12]
[11] Dempsey Affidavit [13].
[12] Needham Affidavit [41] ‑ [42], A22, page 88; Dempsey Affidavit [13].
The development at the Amalgamated Lot was occupied in or around July 2014.[13] The development included the construction of a large south facing wall, where the Easement met the boundary of the former Lot 25. As a consequence, there was no ability to enter the development on the Amalgamated Lot (including the land that was previously Lot 25) via the Easement. Instead, the development on the Amalgamated Lot was accessed by vehicles and pedestrians from Reserve Street at entry points constructed on land that was formally Lot 9.
[13] Needham Affidavit [49].
The development of the Amalgamated Lot included the creation of a garden area over part of the Easement; some alteration in the levels of the area the subject of the Easement; and the creation of a concrete area at the Reserve Street end of the Easement.[14]
[14] Needham Affidavit [43]. See also the survey of the area the subject of the Easement prepared on or around 3 June 2014 at A23.
Mr Needham says that on completion and occupation of the development on the Amalgamated Lot, the Easement was no longer being used, and could not be used, to secure pedestrian or vehicular access to and from what was Lot 25. He also complains that the Easement Area was being used for purposes contrary to the terms of the Easement, that is, for a garden, and for parking and washing vehicles.[15]
[15] Needham Affidavit [50].
Mr Dempsey says that '[the] builder had an obligation to carry out reasonable reinstatement, and performed that obligation by replacing the lower portion of the pavement with a garden area as an interim measure, pending more permanent arrangements being made for access via the Easement into the building'.[16]
[16] Dempsey Affidavit [11].
Correspondence as between the then solicitors for the plaintiff and the defendant followed. In November 2014, the plaintiff sought rectification of the Easement Area (in relation to unauthorised changes and use), and/or surrender of the Easement, as it was no longer being used for its intended purpose as a right of carriageway to secure pedestrian or vehicular access to and from Lot 25 and Reserve Street.[17]
[17] Needham Affidavit [53], A27.
On or around 16 December 2014, the first defendant, via its solicitor, responded in the following terms.[18]
[18] Needham Affidavit [54], A28.
I am writing on behalf of Bluewater Living Pty Ltd and the Owners of Bluewater Strata Plan No. 62323, the developer and strata company respectively of the land on former Lot 25 and former Lot 9 Reserve Street, Scarborough.
The land comprising the former Lot 25 has the benefit of a right of carriageway Easement over a strip of land approximately 5m wide x 31.5m long extending from Reserve Street to the southern wall of the building constructed on the land.
I have been provided with a copy of your letter of 24 November 2014 written to the Owners of Bluewater Strata Plan 62323 and am instructed to reply.
Referring to para.8 in your letter, I am instructed that the development of the land in Strata Plan 62323 did not involve any alteration to the level of the Easement area. The Easement area remains at the same level as when it contained a severely compromised bitumen driveway. The only change that has been made was in an effort to ameliorate the unattractive appearance of the neglected driveway pavement, which detracted from the amenity of the locality. That did not alter the level of the Easement area, other than a negligible adjustment to the northern end level.
As for your para.l2, the Easement area is used for access, and is required for use for access into the future. Access is required to the basement of the building constructed on the land comprising the former Lot 25, and future alterations will clarify that.
Further correspondence was exchanged as between the respective solicitors, including a letter from the first defendant's solicitors dated 11 March 2015, which included the following passage.[19]
[19] Needham Affidavit [57], A30.
I confirm that the easement is and at all times has been required for access to and from the building on Lot 25 and Reserve Street. Temporarily there has been no opening to the building direct onto the easement.
I am instructed that the building has undergone or soon will be undergoing modification in a manner which will more clearly demonstrate the need for the easement.
In or around March 2015, a roller door was installed in the south facing wall where the Easement met the boundary of the former Lot 25.[20]
Most of the landscaping on the area the subject of the Easement was removed and bitumen over the area the subject of the Easement was reinstated in or around October 2015. A strip of plants remains on the eastern side of the Easement Area.
The relief sought by the plaintiff
[20] Needham Affidavit [59].
By this application the plaintiff seeks to have the Easement extinguished. The application is brought under s 129C(1) of the TLA. From the grounds set out in the originating summons filed on behalf of the plaintiff, it would appear that the plaintiff seeks relief under s 129C(1)(a), (b), or (c), in the alternative. The plaintiff's stated grounds for relief were as follows:
(a)by reason of s 129C(1) of the TLA, the Easement ought be deemed to be abandoned;
(b)the first defendant by its actions must be considered to have abandoned the Easement; and
(c)the proposed extinguishment of the Easement will not substantially injure the persons entitled to the Easement or the benefit of it.
The material facts on which the plaintiff relies are as follows:[21]
(a)The ability to obtain access from Lot 25 to Reserve Street is now barred by a wall forming part of the building containing the apartments that is the Bluewater Development building itself (at least for the purpose of vehicular or pedestrian access).
(b)The development which has occurred along most of the length of the area the subject of the Easement.
(c)The amalgamation of Lot 9 and Lot 25 made the need for the Easement obsolete.
[21] Outline of plaintiff's opening submissions for hearing filed 18 May 2017 [28].
Applicable principles
The application is brought under s 129C(1) of the TLA. That section reads as follows:
(1)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 -
(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
(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.
As observed by the Court of Appeal in Saldanha v City of Belmont:[22]
Section 129C(1) provides for an application to be made to the court by any person interested in the land burdened or benefitted, or any local government or public authority benefitted, by the easement. On such an application, the court is empowered to 'by order wholly or partially extinguish, discharge or modify the easement' upon being satisfied of certain matters.
[22] Saldanha v City of Belmont [2018] WASCA 7 [95].
As observed by Kenneth Martin J in Parlapiano v The Registrar of Titles,[23] the provisions within s 129C(1) are expressed disjunctively. Therefore, to enliven my powers to extinguish the Easement by virtue of s 129C(1), it is sufficient that I am satisfied of the criteria under any of s 129C(1)(a), (b) or (c).
[23] Parlapiano v The Registrar of Titles [2015] WASC 253 [5].
The plaintiff has the burden of establishing the easement is obsolete or has been abandoned or that otherwise the court's power should be exercised under s 129C.[24] However, as noted by Hasluck J in Oleander Nominees Pty Ltd v The Owners of Lakeside Villas Strata Plan 14025:[25]
It is apparent … that the Court will be slow to arrive at such a conclusion. In Smith v Australian Real Estate & Investment Co Ltd [1964] WAR 163 Negus J had this to say at p 167:
'Speaking generally, I feel sure Parliament did not, when enacting s 129C intend the court to allow what is in effect the expropriation of private property, namely, the right of a land owner to the benefit of a restrictive covenant, without compensation, unless completely satisfied that the benefit is valueless to such owner from a practical standpoint and does not secure him any practical benefit.'
[24] Oleander Nominees Pty Ltd v The Owners of Lakeside Villa Strata Plan 14025 [2002] WASC 255 [29].
[25] Oleander Nominees Pty Ltd v The Owners of Lakeside Villa Strata Plan 14025 [30].
Further, even if the grounds are established, the court has a discretion to refuse to extinguish an easement.[26]
[26] Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281 [99] (Edelman J), citing Pieper v Edwards [1982] 1 NSWLR 336.
I will deal with each of the grounds, in turn.
Ground 1 - s 129C(1)(a) of the TLA
Section 129(1)(a) 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. As observed by the Court of Appeal in Saldanha v City of Belmont:[27]
[27] Saldanha v City of Belmont [96] ‑ [97].
Section 129C(1)(a) specifies one set of matters, the court's satisfaction of which will empower the making of such an order. The court must be satisfied of these matters by reason of:
(1)any change in the user of the land to which the easement is annexed; or
(2)changes in the character of the property or the neighbourhood; or
(3)other circumstances of the case which the court or a judge may deem material.
The matters of which the court must be satisfied under s 129C(1)(a), by reason of one or more of the above circumstances, are that:
(1)the easement ought to be deemed to have been abandoned or to be obsolete; or
(2)the continued existence of the easement would impede the reasonable user of the land without securing practical benefits to other persons; or
(3)the easement unless modified would so impede such user.
(a) Has there been any change in the user of the land to which the Easement is annexed?
On the evidence before me, I find that there has not been a change in the user of the land to which the Easement is annexed. As to the former Lot 25, it operated as a motel and sometime later, comprised apartments. Prior to the development of Lot 25 and Lot 9, the users of the land to which the Easement was annexed were occupants of the development on Lot 25. While the development on the land that was Lot 25 now extends beyond its former boundaries, the users of the land to which the Easement is annexed are the occupants of the apartments built on land that includes the former Lot 25. In this regard, I accept the evidence of Mr Dempsey at [7(13)] of the Dempsey Affidavit.
As to Lot 24, there is no evidence of any change in the user of that land. The plaintiff is the strata company in respect of a strata scheme for a property located at Lot 24, which was registered in 1977. The users of the land to which the Easement was annexed were and continue to be the occupants of the development on that land.
(b) Have there been changes in the character of the property or the neighbourhood?
On the evidence before me, there do not appear to have been any material changes in the character of the property or the neighbourhood.
The character of Lot 25 was and remains that of a residential development. The development that was on Lot 25 was operated as a motel and sometime later, comprised apartments. Again, while the development on the land that was Lot 25 now extends beyond its former boundaries and the original building has been replaced with a modern one, the residential character of the property remains constant. As to Lot 24, there is no evidence of any change in the character of the property from that of residential dwellings. No evidence was lead as to any change in the character of the neighbourhood.
(c) Are there other circumstances of the case which the court may deem material?
The plaintiff relies of the following facts and circumstances in support of its application, which are asserted by the plaintiff to be material.
First, the barring of access from the former Lot 25 to Reserve Street by reason of the construction of the south facing wall at the boundary of the former Lot 25 (at least for the purpose of vehicular or pedestrian access).
There was certainly a bar to access in the period between the completion of the development on the Amalgamated Lot in about July 2014 and the installation of a roller door in about March 2015, and therefore a period of non‑use of the Easement. (The parties did not address the question of whether this fact may also have been described as a change in the character of Lot 25. I have proceeded on the basis that it is appropriately considered as another circumstance of the case.)
Secondly, the development which has occurred along most of the length of the area the subject of the Easement. The development includes the introduction of a garden area sometime after July 2014 which was removed by October 2015; and the introduction of a strip of plants which remains on the eastern side of the Easement Area.
Thirdly, the amalgamation of Lot 9 and Lot 25, which the plaintiff says made the need for the Easement obsolete.[28] (Again, the parties did not address the question of whether this fact may also have been described as a change in the character of Lot 25. I have proceeded on the basis that it is appropriately considered as another circumstance of the case.)
[28] Outline of plaintiff's opening submissions for hearing filed 18 May 2018 [28].
During the course of the hearing, counsel for the plaintiff also noted that the roller door is kept closed and needs to be opened for access or egress, which acts as a discouragement for its general use. Further, pedestrians wishing to access Reserve Street would normally favour using the principal access way, a short distance to the east of the Easement.
Having given careful consideration to the evidence of Mr Needham and Mr Dempsey, for the reasons set out below, I am not satisfied by reason of the circumstances described above, of any of the matters of which the court must be satisfied under s 129C(1)(a).
(d) Ought the easement be deemed to have been abandoned or to be obsolete?
In Davidson v Elkington,[29] Hall J made the following observations:
Section 129C(1)(a) permits modification or extinguishment of an easement in circumstances other than intentional abandonment. ... abandonment arising as a conclusion drawn from acts or omissions of the owners (past and present) of the dominant tenement is equivalent to common law principles and is covered by s 129C(1)(b). However, s 129C(1)(a) permits extinguishment, wholly or partially, where the court is satisfied that, having regard to the circumstances, the easement should be deemed to have been abandoned or to be obsolete. The use of the word 'deemed' in this context suggests that such a conclusion could be reached even though it may not be possible on the evidence to determine the intention of the owner of the dominant tenement or even despite an intention not to abandon. The subsection also permits modification where the court concludes that continued existence of the easement would impede reasonable use of the land without securing practical benefits to other persons. …
Subsection 129C(1)(a) requires the court to be satisfied that by reason of a change in the user of any land having the benefit of the easement or a change in the character of the property or the neighbourhood or any other circumstances that the court may deem material, the easement ought to be deemed to have been abandoned or to be obsolete. In some cases the view has been taken that the word 'obsolete' related to whether the grant in question had any value: Chatsworth Estates Co v Fewell [1931] 1 Ch 224. In other cases the question has focussed more on whether the original purpose of the grant could still be achieved: Knight v Simmonds [1896] 2 Ch 294, 297. More recently, however, in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099, 18,100 Mason P held that the word 'obsolete' in a similar provision in the New South Wales legislation meant either that the object of the easement had become incapable of fulfilment or that it served no present useful purpose.
In Long v Michie Austin J said that even applying the Durian test the issue had to be approached cautiously because whilst a provision of this type confers a power to abrogate existing rights, that power is not available for the purpose of expropriating private rights for profit: at [28] and see Re Henderson's Conveyance[1940] Ch 835, 846 (Farwell J). Similarly in Smith v Australian Real Estate and Investment Co Ltd[1964] WAR 163 Negus J said at 167:
'Speaking generally, I feel sure Parliament did not, when enacting section 129C intend the court to allow what is in effect the expropriation of private property, namely, the right of a landowner to the benefit of a restricted covenant, without compensation, unless completely satisfied that the benefit is valueless to such owner for a practical standpoint and does not secure him any practical benefit.'
[29] Davidson v Elkington [2011] WASC 29 [64] ‑ [66] (Hall J).
In Montague Holdings (Int) Pty Ltd v Worth, Sanderson M refers to the recent decision of the Court of Appeal in Anascot Pty Ltd v Alcoa of Australia Ltd,[30] and notes that there appears to be a difference in judicial opinion about the proper approach to s 129C(1)(a):[31]
[30] Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228.
[31] Montague Holdings (Int) Pty Ltd v Worth [2018] WASC 56 [10] ‑ [11].
These two differing approaches might be referred to as the 'historical' approach as against the 'present use' approach. The difference between the two was considered by the Court of Appeal in Anascot Pty Ltd v Alcoa of Australia Ltd [2017] WASCA 228. Their Honours said [72] - [74]:
'As noted earlier, Anascot relies on the observations of Romer LJ (Birkett LJ & Evershed MR agreeing) in the case of In Re Truman. In that case, his Lordship said:
"It seems to me that the meaning of the term 'obsolete' may very well vary according to the subject-matter to which it is applied. Many things have some value, even though they are out of date in kind or in form - for example, motor-cars or bicycles, or things of that kind - but here we are concerned with its application to restrictive covenants as to user, and these covenants are imposed when a building estate is laid out, as was the case here of this estate in 1898, for the purpose of preserving the character of the estate as a residential area for the mutual benefit of all those who build houses on the estate or subsequently buy them.
It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word 'obsolete' is used in section 84(1)(a) [of the relevant English statute]. (emphasis added)"
Cases which have adopted those observations in this context include Driscoll v Church Commissioners for England; Re Alexandra; Re Miscamble's Application and Re Robinson.
On the other hand, Alcoa contends, in effect, that the language of 'obsolete' in s 129C(1)(a) also conveys the notion of the restriction serving no present useful purpose. Reference is made to the decision of Mason P (Stein JA agreeing) in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd and Davidson v Elkington. In Suhr, Pagone J appeared to accept the possibility that a restriction may not be 'obsolete' within the meaning of the relevant provision if it provides a continuing benefit to persons by maintaining a restriction on the user of land, notwithstanding the fact that the purpose for which it was designed has since become wholly obsolete. That view appears to be consistent with the view expressed by Denning LJ in Driscoll, although Hodson & Morris LJJ in Driscoll applied the observations of Romer LJ in In Re Truman.'
Their Honours in that case proceeded on the basis of the historical approach adopted by Romer LJ in In Re Truman, Buxton & Co Ltd's Application [1956] 1 QB 261. But they did so on the basis that was the positon most favourable to the appellant and without determining which of the two approaches was to be preferred. In this case the approach most favourable to the defendants is the present use approach. Counsel for the plaintiff accepted that is the approach that should be adopted for the purposes of this application and accordingly it is the basis upon which I have approached the matter. But I have not presumed to determine, for the purposes of these reasons, which of the two approaches is preferable.
In this case, the submissions of the plaintiff appear to raise that the Easement is not being used for its intended purpose.[32] However, neither counsel expressly addressed the question of what approach should be adopted for the purposes of this application.
[32] Outline of plaintiff's opening submissions for hearing filed 18 May 2017 [14(b)], [16] ‑ [18(b)], [28(b)].
The onus rests with the plaintiff and on the evidence before me, I am not satisfied that by reason of any material circumstance, the Easement ought to be deemed to be abandoned or to be obsolete.
Of the circumstances that may be discerned from the evidence, the most material is the amalgamation of Lot 9 and Lot 25. The land that was Lot 25 is no longer landlocked. Access is now readily available from Reserve Street and that part of the land that was formerly Lot 9. However, I am not satisfied that the benefit of the Easement is valueless to the first defendant from a practical standpoint, and does not secure the first defendant any practical benefit.
In this regard, I accept the evidence of Mr Dempsey at [17] of the Dempsey Affidavit, to the effect that the Easement provides convenient access to that part of the development constructed on the land that was formerly Lot 25 and therefore, the Easement has a continuing benefit. Mr Dempsey says at [7(22)] of the Dempsey Affidavit that '[it] is commonly used to take refuse disposal bins serving the units constructed on the former Lot 25 to the road verge, and is used for furniture removal and delivery to units in the former Lot 25 section of the building'.
Nor am I satisfied that the original purpose of the Easement can no longer be served. As observed by Hall J in Davidson v Elkington:[33]
[T]he Ninth Schedule permits the use of the Easement for all purposes. Consistently with the rule of interpretation expounded in Westfield there is no basis for limiting the purposes which the right of way in this case can be exercised. In any event a permissible use of a right of way can change with changes in the nature of the use of the dominant tenement over time if the terms of the grant are sufficiently broad: Westfield [42]; Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 [37].
[33] Davidson v Elkington [30].
Accordingly, I am not satisfied that there is a proper basis for the exercise of the court's discretion to extinguish the Easement.
(d) Would the continued existence of the Easement impede the reasonable user of the land without securing practical benefits to other persons?
There is no evidence before me that the continued existence of the Easement will impede the reasonable user of the relevant land. Nor is there evidence that the Easement, unless modified, would so impede such user.
Ground 2 - s 129C(1)(b) of the TLA
As observed by the Court of Appeal in Saldanha v City of Belmont:[34]
Section 129C(1)(b) specifies another set of matters, the court's satisfaction of which will empower the making of an order wholly or partially extinguishing, discharging or modifying the easement. The matters of which the court must be satisfied are:
(1)that the persons of full age and capacity for the time being or from time to time entitled to the easement have agreed to the same being wholly or partially extinguished, discharged or modified; or
(2)by their acts or omissions, those persons may reasonably be considered to have abandoned the easement wholly or in part.
[34] Saldanha v City of Belmont [98].
In this case, extinguishment is not agreed. Therefore, if the plaintiff is to succeed in its application under s 129C(1)(b), the court must be satisfied that, by their acts or omissions, those entitled to the benefit of the Easement may reasonably be considered to have abandoned the Easement wholly or in part.
As observed by Hall J in Davidson v Elkington, this subsection is most like the common law concept of abandonment.[35]
In Long v Michie [2003] NSWSC 233 Austin J said that the principles to be applied under a New South Wales provision which is materially identical to s 129C(1)(b) were no different from the principles of the common law doctrine of extinguishment by abandonment. His Honour referred to Grill v Hockey (1991) 5 BPR 11,421, 11,424 (McLelland J) in this regard.
The common law principles were stated in Williams v Usherwood (1981) 45 P & CR 235, 256:
'To establish abandonment of an easement the conduct of the dominant owner must … have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement … Abandonment is not … to be lightly inferred. Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it.
Non-use of a right of way may be a relevant factor to take into account but it is rarely conclusive that the right of way has been abandoned. In Treweeke the majority (McTiernan and Mason JJ) held that there was no abandonment of a right of way notwithstanding non-use for over 40 years. Mason J, at 302, noted that non-use, even over a long period of time, does not necessarily indicate an intention to abandon as non-use can be due to lack of need to use the right of way and the availability of alternative or more attractive means of access. There have been some suggestions that a long period of non-use may raise a prima facie presumption of abandonment, but the more recent trend of authority is that courts will reach a decision after weighing up all relevant facts without any presumption or shifting of onus: Long v Michie [17] - [19].
…
The availability of alternative access to the dominant land may be relevant as providing an explanation for why use of the right of way has not been exercised and thus prevent an inference of an intention to abandon being drawn. Alternatively, the availability of another access route, particularly if it has been acquired since the right of way was created, may indicate that the easement no longer has practical utility: McIntyre v Porter [1983] 2 VR 439. Although this latter aspect appears more relevant to the s 129C(1)(a) considerations regarding change to the property and practical benefits and to the s 129(1)(c) considerations as to whether substantial injury would result from extinguishment.
The erection of obstructions on the servient land may also be an indication of abandonment where the obstructions have been erected with the acquiescence of the owner of the dominant tenement. However, the mere existence of obstructions over a long period of time without complaint by the dominant tenement owner will not usually support an inference of abandonment. In Treweeke the erection of fences and the construction of a swimming pool across the right of way did not support a conclusion of abandonment. In any event, the construction of buildings and the erection of fences will not always interfere with the exercise of the right of way and even where they do the court will take into account whether they may be removed or modified: Gotobed v Pridmore (1970) 115 Sol Jo 78.
The fact that at the time of purchase by the owners of the dominant tenement the register recorded the existence of an easement and those owners relied upon that notation may be taken into account in the exercise of the court's discretion as to whether to make a declaration under s 129C(3) that the easement has been wholly or partially extinguished: Proprietors Strata Plan No 9,968 v Proprietors Strata Plan No 11,173 [1979] 2 NSWLR 605, 616 ((Needham J). On the other hand the existence of the power to make a declaration under s 129C(3) presumes that in some cases it will be appropriate to make orders having the effect of extinguishing an easement notwithstanding its notation on the register.
[35] Davidson v Elkington [39] ‑ [45].
In this case, the plaintiff sought to rely on the barring of access from the former Lot 25 to Reserve Street by reason of the construction of the south facing wall at the boundary of the former Lot 25 (at least for the purpose of vehicular or pedestrian access), to demonstrate a manifested (ie objective) intention to abandon the Easement. On behalf of the plaintiff, it was submitted by counsel that the later installation of a roller door was 'really a contrivance, with respect, on the part of the first defendant to avoid the plain and unequivocal outcome demonstrated by the erection of and therefore barring of a right of carriageway which was first created in 1976'.
There is also evidence that sometime relatively shortly after access was barred by the wall, part of the Easement Area was landscaped as a garden area. The Easement could not be used until the roller door was installed. Further, there is also evidence that there is convenient, alternative access available to the first defendant, within the boundaries of its own land.
All of the circumstances of the case must be considered in order to determine whether the circumstances are such that an intention to abandon is manifest.[36] However, taking into account all of the evidence, I am not satisfied that a manifested (ie objective) intention to abandon the easement has been demonstrated. In coming to this conclusion, I have given consideration to the following.
[36] Femora Pty Ltd v Kelvedon Pty Ltd [50].
I accept that the first defendant was unable to use the Easement for a period. But that inability was not permanent and while a period of non‑use may be a factor is assessing whether a person has abandoned an easement, it is not determinative.[37] The first defendant denies that the Easement was abandoned. I accept the evidence of Mr Dempsey at [13] of the Dempsey Affidavit, to the effect that the Easement was created to provide access to and from apartments on the land, and is still used and is still required for that purpose. I also accept that the installation of the roller door and the reinstatement of the bitumen paving was carried out as part of an ongoing intention by the first defendant to continue to take advantage of the Easement.[38] On the evidence, I am not satisfied that the later installation of a roller door was 'really a contrivance, with respect, on the part of the first defendant to avoid the plain and unequivocal outcome demonstrated by the erection of and therefore barring of a right of carriageway which was first created in 1976'.
[37] See also Femora Pty Ltd v Kelvedon Pty Ltd [46].
[38] Dempsey Affidavit [7(16) and (38)(b)].
Ground 3 - s 129(1)(c) of the TLA
In Saldanha v City of Belmont, the Court of Appeal observed that:[39]
Section 129C(1)(c) allows the court to make an order under s 129C(1) when satisfied that the proposed extinguishment, discharge or modification will not substantially injure the persons entitled to the easement.
[39] Saldanha v City of Belmont [99].
As noted by Kenneth Martin J in Parlapiano v The Registrar of Titles:[40]
'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'.
[40] Parlapiano v The Registrar of Titles [18] See also Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 [100]; and Tujilo v Watts [2005] NSWSC 209; (2005) 12 BPR 23,257, cited in Anascot Pty Ltd v Alcoa of Australia Ltd [86].
In Anascot Pty Ltd v Alcoa of Australia Ltd,[41] the Court of Appeal found when considering an application under s 129C(1)(c):
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: Re Stani; Re Alexandra; Frasers Lorne Pty Ltd v Burke.
[41] Anascot Pty Ltd v Alcoa of Australia Ltd [88] (footnotes omitted).
The first defendant says that the extinguishment of the Easement would substantially injure the persons entitled to the Easement.[42]
[42] Dempsey Affidavit [18(d)].
In his affidavit, Mr Dempsey asserts that there would be benefit to Lot 24 in that for any future development of that site, the retention of an access way along the Easement would provide an additional access for any development on Lot 24.[43] If this was the only evidence of injury before me, it might properly be characterised as a 'theoretical injury', and would likely be insufficient.
[43] Dempsey Affidavit [18(b)].
Mr Dempsey however also deposes to his belief that that the Easement provides practical benefits, especially for the dominant tenement in regard to access. He explains the practical use to which the Easement is now commonly put at [7(22)] of his affidavit.
It is true that the extinguishment of the Easement would not leave those with an interest in the dominant tenement land locked. There are now alternative points of entry from Reserve Street for vehicular and pedestrian traffic, which points of entry were used exclusively in the period between July 2014 and the introduction of a roller door in 2015.
Despite this, I am not satisfied that the extinguishment will not substantially injure the persons entitled to the Easement. On the evidence before me, I find that the loss of practical benefits in regard to access via the Easement as described by Mr Dempsey would be the loss of something which is real and has a present substance. I find that the continued existence of the Easement will secure 'practical benefits'.
Conclusion
For the reasons I have explained, I am not satisfied of the criteria under any of s 129C(1)(a), (b) or (c). Therefore, my powers to extinguish the Easement by virtue of s 129C(1) are not enlivened. The Easement is not discharged. I will hear from the parties as to the appropriate form of orders.
Schedule 1
0
10
1