- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
File No 814 of 2002
Townsville Port Authority
Max Locke, Registrar of Title
MOYNIHAN J – REASONS FOR JUDGMENT
Townsville Port Authorities v Max Locke, Registrar of Titles  QSC 005
Townsville Port Authorities
Max Locke, Registrar of Titles
SC 814 of 2002 (Townsville)
5 February 2004
15 August 2003
The Application is dismissed
Integrated Planning Act 1997 (Qld)
Land Title Act 1994 (Qld)
Property Law Act 1974 (Qld)
Laws of Australia Sydney: Butterworths, 1991
Woodfall’s Law of Landlord and Tenant (28th edition) London: Sweet & Maxwell/Stevens, 1978-79
Natural Resources and Other Legislation Amendments Bill 1999
P Lyons QC for the Applicant
B Clarke for the Respondent
Suthers Taylor for the Applicant
Crown Solicitor for the Respondent
- The applicant (the Townsville Port Authority) seeks the review of a decision by the respondent (the Registrar of Titles) refusing to register a covenant instrument under Part 6, Division 4 of the Land Title Act 1994 over a specific block of land in Townsville (“the subject Lot”).
- The Port Authority is a government owned corporation which administers the Port of Townsville. A developer (T W Hedley (Investments) Pty Ltd) applied to the Townsville City Council (the Council) for a development permit allowing for multiple residential homes on the subject Lot. The subject Lot, formerly a ferry terminal, is adjacent to the Port of Townsville operated by the Port Authority.
- The Council granted the developer’s application and the Port Authority appealed to the Planning and Environment Court against the grant. After negotiations involving the Port Authority, the developer and the Council, a settlement deed was executed and put into effect.
- The deed provided for the execution of a covenant which was a schedule to the deed. It consisted of a form 31 under the Land Title Act and an attached schedule. Documents in this form were executed pursuant to the agreement and lodged for registration; it will be necessary to consider them in some detail later. It will be convenient to refer to them as the “covenant instrument”.
- The application seeks to the review of the Registrar of Titles’ refusal to register the covenant instrument in the form lodged or amended as proposed by the Port Authority on the developer is the subject of this review.
- Following the execution of the covenant instrument the Port Authority discontinued its appeal and the Council approved the developer’s application subject to conditions. These included an obligation for the developer to register the covenant instrument under the Land Title Act.
- It is clear that the course of events I have outlined reflects a major concern on the part of the developer, the Port Authority and the Council about the adverse impact of the conduct of port operations on the amenity and environment on the adjacent residential development to be carried out on the subject Lot. This concern included that the developer’s successors in title might sue the Council or the Authority.
- It is unnecessary to trace the history of the events following the lodgement of the covenant instrument for registration on 4 July 2002 in detail. It is sufficient to note that after the issue of requisitions, response to the requisitions, negotiations and suggested variations of the covenant instrument the Registrar declined to register it either in its original or amended form.
- The case turns on the construction of the covenant instrument and whether it comes within s97(3)(a) of the Land Title Act.
- The Registrar contends, broadly speaking, that the covenant instrument does not comply with the terms of the subsection in that:-
- It is not of a “covenant” in terms of the provision and is uncertain;
- It does not “relate to the use” of the subject Lot or any building on or proposed to be erected on the subject land;
- If it does, the applicant is not a qualified covenantee under s97A of the Land Title Act.
- As contemplated by the settlement deed the document lodged for registration consisted of a form 31 under the Land Title Act and an attached schedule. In my view, these fall to be construed as a single document.
- That conclusion follows from the terms of the two documents. Page 2 of the form contemplates a schedule; see the heading. The form and the schedule are sequentially numbered. Clause 5 of the form provides that the covenantor and the covenantee covenant “in respect of the covenant in respect of item 4”. Item 4 refers to a covenant pursuant to s97A(3)(a) “in terms of the attached schedule”. The form states “see the attached schedule”.
- The form nominates the developer as “covenantor” and the Council as “covenantee”. It is executed by them but not the Port Authority; it does not mention the Port Authority. The form describes the subject Lot as being subject to the covenant and the covenantor as registered owner of the subject Lot covenant with the covenantee “in terms of item 4”.
- Item 4 of the form provides:-
“Description of Covenants”
“Covenants pursuant to s97A(3)(a) of the Land Title Act 1994 relating to the use of the building, or building proposed to be built on the Lot, or the Lot in terms of the attached Schedule”.
(In this and subsequent extracts from the covenant instrument underlined and struck out portions are proposed amendments.)
- Part 5 of the form entitled “Grant/Execution” refers to the developer as the registered owner of the subject Lot. It provides that the developer as covenantor: “covenants with the covenantee of the covenant described in item 4.”
- Turning to the schedule it is executed by the Port Authority but not the developer or the Council. It defines “covenantor” to include the developer’s successors in title. It defines terms such as Port Activities, Port of Townsville, Proprietor and Registered Proprietor. It specifically refers to the Authority. The interpretational section provides that “agreements or covenants on the part of two or more persons are joint and several”.
- Under a heading “Covenants” the schedule provides:-
“In consideration of the Council granting a Development Approval for the Land and a building or building proposed to be built on the Land and for the purpose of fulfilling a condition imposed by the Council in a Development Approval, the Covenantee hereby covenants with the Council as follows:-
- ACKNOWLEDGEMENT OF EFFECT ON AMENITY AND ENJOYMENT OF USE
The Covenantor acknowledges that the Land is in the vicinity of the active Port of Townsville and the amenity and enjoyment of the use of the Land may be subject to noise, air particle emissions and other effects associated with Port Activities including but not limited to the movement of persons and the import, export, transhipment, handling, storage and distribution of cargo, live produce, products, minerals and material and any and all vehicle movements relating to any such Port Activities.
- RESTRICTION ON LIABILITY
Neither the Council or TPA shall be liable by way of injunction, restraining order, damages or similar relief to the Covenantor, Proprietor or Registered Proprietor for any loss of amenity or enjoyment of the use of the Land from any lawful noise, air particle emissions and other effects associate3d with Port Activities including but not limited to the movement of persons and the import, export, transhipment, handling, storage and distribution of cargo, live produce, products, minerals and material and any and all vehicle movements relating to any such Port Activities.
- COVENANTS FOR BENEFIT OF TPA
Pursuant to section 55 of the Property Law Act 1974, the covenantor and council acknowledge and agree that the covenants contained in this Schedule 1 are for the benefit of the TPA (together with Council).
Execution of this Schedule 1 by the TPA shall constitute acceptance by TPA of the benefit of these covenants pursuant to that section 55 of the Property Law Act 1974.”
- AMENDMENT OR RELEASE OF COVENANTS
The Covenantor, Council and TPA agree that this covenant cannot be amended, released, discharged or removed from registration pursuant to the Land Title Act 1994 without the written consent of the TPA to any such amendments, release, discharge or removal.
- Clauses 5 and 6 deal with costs and dispute resolution and are of no present relevance. By clause 7 the Covenantor “covenants to:
Use the Land, and a building, or building proposed to be built, on the Land:
7.1In accordance with the Development Approval;
7.2 Subject to any loss of amenity and enjoyment as described in Clause 2; and
7.3subject to the negative obligation that it shall not seek any injunction, restraining order, damages or similar relief as a result of any loss of amenity and enjoyment as described in Clause 2.”
- Clause 7, like the rest of the covenant instrument, is not notable for its elegant drafting. The reference in 7.2 to “any loss of amenity and enjoyment as described in clause 2” is, however, clearly enough referable to loss of amenity or enjoyment of the developer’s land from “any lawful noise, air particle, emission and other effects.” Clause 7.3 is expressed to disqualify the developer from seeking relief in respect of any loss of amenity or enjoyment as described in clause 2.
- Covenant is not a word of precise definition and is now generally used to refer to an agreement whether or not by deed, The Laws of Australia (Butterworths) Pt 28.7, ch 4, part A, Woodfall’s Law of Landlord and Tenant (28th edition) volume 1, para 1-1071.
- In this case, the instrument can be described as a covenant or promise involving the Council, the developer and the Port Authority in accordance with its terms. Clause 2 refers to developer, Council and the Port Authority and clause 4 is binding on the three parties as is clause 6 which deals with dispute resolution. Clause 2 is expressed to be to the benefit of the Council and the Port Authority. The Port Authority signifies its acquiescence by its execution of the schedule.
- In substance, the covenant instrument recognises that the introduction of residential development in what was previously part of the port area and adjacent to the operating port may have an adverse effect on the residential amenity and environment. It further recognises that present and future owners or occupiers of residences on the subject Lot may seek to restrain or limit the effect of port activities on the land.
- The instrument purports to bind the developer’s successor in title in the restriction of the liability of the Authority and Council; see the acknowledgement in clause 1 of the schedule and the restrictions in liability provided by clause 2 and to extend these benefits, particularly the consequences of the registration, to the Port Authority. These consequences include that the covenant attaches to the subject Lot to the benefit of the covenantor’s successors; which is dealt with later.
- The covenant instrument seeks to extend its application, particularly of its registration, to the Port Authority. The issue then is whether the Registrar has erred in law in refusing to register the covenanting instrument.
- I turn now to the provisions of the Land Title Act. Section 97A was introduced into the Act in 1997 and was amended in 2000 and 2003, the latter after the deed was lodged for registration.
- Section 97A provides:-
“97A Covenant by registration
- A lot may be made the subject of a covenant by the registration of an instrument of covenant under this division.
- An instrument of covenant may be registered under this division only if the covenantee under the instrument is the State, or a statutory body representing the State, or a local government.
- The covenant must-
- relate to the use of –
- the lot or part of the lot; or
- a building, or building proposed to be built, on the lot; or
- relate to the conservation of a physical or natural feature of the lot, including soil, water, animals, and plants; or
- be for ensuring that the lot may be transferred to a person only if there is also transferred to the person
- another lot that is also the subject of the covenant; or
- non-freehold land that, under the Land Title Act 1994, is the subject of the covenant; or
- a lot mentioned in subparagraph (i) together with non-freehold land mentioned in subparagraph (ii)
- (a)may be a positive covenant or a negative covenant; and
- is binding on the covenantor and the covenantor’s successors in title
- The covenant must not prevent a person from-
(a)registering an interest under this Act; or
(b)exercising the person’s rights under a registered interest; or
(c) releasing or surrendering a registered interest.
- In this section-
“use”, of a building, does not include architectural or landscaping standards for the building.”
- This case turns on s 97A(3)(a). It is, however, noteworthy that s 97D(1) and (2) provide to the effect that a registered covenant may be wholly or partly discharged or altered by registering an instrument signed by the covenantee.
- Section 97D(4) provides that on registration of the instrument of release “the Lot is released from the covenant”. Clause 4 of the schedule included in the covenanting instrument appears to reflect this provision. It will be recalled it requires the Port Authority’s consent for any amendment to release, discharge or removal of the covenant.
- Section 97D(4)(a) supports the conclusion that a registered covenant binds the subject Lot, not just the parties, see also s97A(1) and (3)(a) (b) and (c) which refer to “the Lot” rather than restricting reference to the covenantor or the covenantee.
- Division 4A of the Land Title Act and in particular s97A(3)(a) does not fall for consideration in a vacuum. It allows for the creation by registration of a right over designated land (a servient tenement) which does not appertain to any specific Lot; there is no dominant tenement. The parties and “the Lot” are bound to the benefit of a wider interest than that associated with another lot. Consistently with this, s97A(2) provides that a covenant may be registered only if the covenantee is the State, a statutory body representing the State or a Local Government.
- Provision for the registration of a covenant and the consequences which follow from registration of a covenant was first made in 1997 by the introduction of what is now s97A(c). Section 97A 3(a) and (b) were introduced in 2000.
- The explanatory note for the Natural Resources and Other Legislation Amendments Bill 1999 which led to the amendment states that:
“The range of covenants capable of registration has been expanded to allow the State, statutory bodies representing the State and local governments to register covenants about the use of land, a building, or a proposed building or relate to the conservation of a physical or natural feature of the land including soil water plants or animals. Indeed a covenant may be used to achieve an objective, provided it is consistent with planning scheme or a condition of development approval, where a planning objective might not otherwise be achieved.”
“…As local governments or statutory bodies representing the State may enter into a covenant, it is not intended that a covenant replace or circumvent a planning scheme or a condition of a development approval. However, covenants may be a useful tool for environmental, conservation or related use where there is statutory support for their use or perhaps where they are supported by a planning scheme but no development approval is being sought. These bodies would not however be able to sue covenants for matters for which an easement is the appropriate tool”.
- It is noteworthy that s2.1.25, of the Integrated Planning Act 1997 provides that a covenant under s97A(3)(a) which is inconsistent with a Planning Scheme is of no effect. Under s 3.5.37(1) such a covenant is of no effect unless it is entered into as a condition of an approval.
- A registrable covenant must satisfy the requirements of s2.1.25 and “relate to the use of” the subject Lot. It is true that “relate to” is of wide general import but it has to be construed in the context I have just canvassed.
- The section contemplates the benefit of registration attaching to the subject Lot. A registrable covenant may impose positive or negative obligations. In the context of s97A(4)(a), that contemplates a restriction on or an obligation as to the use of the subject Lot.
- The covenant instrument is, in substance, designed to protect the Port Authority and the Council from liability to the developer for the adverse affects of activities arising from port operations. On one view, if it relates to any Lot it is to the Port Authority’s land on which port operations are conducted.
- Furthermore, a covenant not to sue the Council (a local authority in terms of s97A(2)) or the Port Authority (which does not fall within the section) in respect of port activities, does not restrict or mandate the use of the subject Lot or any building on it. The artificiality of the endeavours to come within s97A(3)(a) is further exemplified by clauses 3 and 4 of the schedule forming part of the covenant instrument.
- Clause 3 seeks to invoke s55 of the Property Law Act 1974 to bind the developer’s successors in title. Section 55 provides to the effect that a beneficiary to a covenant between others may enforce the promise. In this case, the position of the Port Authority is a step further from the required relationship with the subject Lot for the reasons canvassed. Moreover, “Promisor” in s55 does not include successors in title.
- Section 55(5) subjects the operation of s55 to the Land Title Act. Nothing in that Act permits registration to give the effect to a promise for the benefit of a third party contended for here. This is in circumstances where the Port Authority lacks standing to be a registered covenant; s97(2).
- Clause 4 is directed to s97D(1) and (2) of the Land Title Act which provides that a registered covenant may be discharged by filing an instrument signed by the covenantee. Clause 4 is apparently not restricted to creating a contractual relationship between the developer and Council.
- The whole scheme of the covenant instrument is to achieve the benefits of registration, this included attaching the covenant to the subject Lot to the benefit of the covenantor (the developer and its successors in title). This cannot be achieved if the covenant can be withdrawn or altered by the registration of an instrument signed only by the “nominal” covenantee.
- Clause 4 cannot impose an additional condition of registration binding on the subject Lot. It is no more than a contractual arrangement between the developer and the Council.
- The considerations being those that I have canvassed the covenant instrument does not, as s97A(3) requests that is “must”, relate to the subject Lot.
- It has not been demonstrated that the Registrar erred in law in refusing to register the covenanting instrument. I dismiss the application.
- Published Case Name:
Townsville Port Authorities v Max Locke, Registrar of Titles
- Shortened Case Name:
Townsville Port Authorities v Registrar of Titles
 QSC 5
05 Feb 2004
- White Star Case:
No Litigation History