WA Permit Authority obligations RE easement

[SimonWheeler]

Hi,
we are a dominant tenant of a registered easement shown on our title.

The Transfer of Land Act 1893 S64 notes...

"64 . Certificate conclusive evidence as to title to easements

Whenever any certificate of title either already registered or issued or hereafter to be registered or issued under any of the provisions or otherwise under the operation of this Act shall contain any statement to the effect that the person named in the certificate is entitled to any easement therein specified such statement shall be received in all courts of law and equity as conclusive evidence that he is so entitled."
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When this development was advertised 3 of the 7 beneficiaries to this easement were not notified of this development and subsequent encroachment, the City say that since this is a `civil matter` they need pay no regard to the Easement in their deliberations.

The local permit authority sometime ago recommended development approval to a JDAP committee for plans that included building (retaining) on the easement (3 times to date) , they have as of yet to grant building permits that encroach the easement but inform us that any encroachment would be a 'civil matter'

The City states on planning meeting minutes that planning and development duties are `quasi-judicial`, does this infer they have some responsibility to take into account the Transfer of Land and other acts when making such decisions?.

In other words, do they have a duty of care to the beneficiaries of an easement?

 

[Tripe]

Who is the Servient title holder?

And what is the nature of the easement? A right of carriage?

 

[SimonWheeler]

a neighboring land owner, the easement is a right of carriageway created under I think the 9th Schedule.

 

[Tripe]

What is your grievance?

With the easement?

 

[Rob Legat - SBPL]

I don’t practice in WA, but it sounds like there is more to this.

Normally with an easement you have the right to use the land in some way - you don’t have rights to the land itself. If the ‘development’ doesn’t affect that use, then there should be no issue. If it does, I think the most you’d be enetitled to is some compensation unless there’s any overwhelming necessity for the easement. It doesn’t sound like it will be completely blocked.

Councils can generally order building and development works on private property where they deem it necessary to ensure compliance with the law, public health and safety, preservation of the land use, and the like. It’s probable that the retaining wall is necessary to ensure that some land slippage doesn’t occur, which is both a preservation and a health and safety issue. It could just be that that concern trumps your easement interest.

 

[SimonWheeler]

there is always more

The easement, due to access/egress issues on a battleaxe block has always been assumed to afford some protection to the amenity of the beneficiaries since its existence prevented the subject land being developed in a certain manner (multiple storey multiple-dwellings)

When a Development Assessment Panel approved a development application for this land they included an advice note (sadly not a condition) that the approval was not a right to build on the easement, even though the approved plans did just that, and that it was the servient owners responsibility to address the matter of the easement.

We, (5 of the beneficiaries) are currently in WASC defending the owners application to extinguish the easement.

The simple issues is (@Tripe as well) that the developer should have attempted to extinguish the easement prior to beginning construction on the land (I am told this would be normal practice) remembering that the developer also still has to apply for subdivision, occupancy permits etc.

The above is what it is... however the permit authority will have to grant building permits etc for an approved design that encroaches the easement, under WA law (will find the reference but its either the strata titles or Property law act) we have every right to remove, (using reasonable methods) any obstruction to the easement. So if we wanted to be awkward in defending our property rights, when they build a wall we have every right to go and dismantle it, this clearly will cause greater issues.

We have petitioned the permit authority time and again to let them know that we will be defending our property rights and we expect them to do the same, to date they will comment only that it is a 'civil mattter'

 

[Tripe]

An easement does not allow dominant title holders exclusive possession of the land, only the right to use it for the purpose of the wording of the easement.

If the retaining wall does not reasonably interfere with using your right of carriage, then there is not much you can do.

However if it reasonably interferes with you right of carriage, then you can sue and remove the obstruction

 

[Rob Legat - SBPL]

I've got a clearer understanding of what's going on now. As what as my comments above, I'll add that the local Council probably won't have even considered whether there is a private easement on the land at all. They'll only look at public service easements (like stormwater and sewerage).

I don't think they owe you a duty of care, and will no doubt have sufficient coverage in their approvals that they gave warning to the developer that they needed to ensure their rights in development outside the bounds of the Council approval.

Rights between dominant and servient tenements are contractual in nature. By virtue of privity of contract, it's a matter between the tenements - even though it is registered on title.

 

[SimonWheeler]

Hi, yes there is as noted an advice note in the development approval denying any responsibility for what happens to the easement. I can assure you that the City and the DAP were made well aware of the existence of the easement ... and are probably sick of hearing about it by now.

I think I understand your point re it being essentially a private agreement, though I assumed that the point of Torrens title and the TLA (in WA) was to avoid this mess in the first place (that was my assumption and am quite probably wrong)

The bigger issue here, and why I think the Council should have thought a little harder is that there is every chance, that unless the easement is extinguished, the WA Planning Commission may not grant the amalgamation and strata subdivision that the developer will require to get an occupancy permit etc. Certainly not whilst there are legal proceedings over the land.

There is a not-insignificant chance that the completed development will never be legally habitable~ & if not the developer might well ask the question of Council why it was allowed to get this far in the first place, conversely, if the land is developed and the easement encroached then we would attempt to join the City in any action against the developer since he can not build there without their approval in the form of a building permit and license.

..a lot depends I suppose on what the Supreme Court decides re extinguishment.

Thank you for the replies, will post back with any interesting `developments`!

 

[Rob Legat - SBPL]

To fill you in a bit more, the registration of something like an easement fulfils a few roles, including:

1. Notice. By appearing on a public register, it allows people to be aware of the existence of the easement. I haven’t checked your Act, but there will usually be a provision which states to the effect that registration is deemed to be notice to the world of the existence of that dealing. It stops claims that people were not aware of its existence.

2. Binding successors in title. The easement itself, as noted, is a contractual relationship between the grantor and the grantee. With basic contracts, they only bind the parties to the actual contract. If the rights are assigned to someone else (eg the property is sold) that would normally require a deed be entered into where the new owner agrees to be bound by the terms of the easement. That can get messy over time, and one slip up in the chain can ruin it all the way down the line. So, the Act will no doubt provide that anyone who becomes the registered proprietor of a piece of land takes title subject to the encumbrances and dealings which are registered on the title - regardless that they were not a party to the original agreement. It stops, for example, someone buying a serving tenement lot and refusing to be bound by the terms of the easement.