Re Wenck[2004] QSC 15

SUPREME COURT OF QUEENSLAND

1. The applicants are the registered proprietors as joint tenants of an estate in fee simple in Lots 19 and 20 on RP 811402 situated at Mt Nebo Road and Alutha Road, The Gap. They seek an order pursuant to s 181 of the Property Law Act 1974 (“the Act”) that Easement A on RP 55365 over Lots 19 and 20 registered in the Office of the Registrar of Titles on 10 November 1938 with dealing No A383126 be extinguished.  The easement comprises certain land between a cul-de-sac at the western end of Alutha Road and Mt Nebo Road.  The area of the easement sought to be extinguished relates only to that part of the easement which traverses Lots 19 and 20.  It also traverses parts of other adjacent lots but to a much less extent.  Lots 19 and 20 together comprise just under 5,000 sq m.

2. On 8 January 2004 Mr Justice Muir made orders about notice pursuant to s 181(7) of the Act. This was done by a notice in the Public Notices section of the Courier Mail and by posting that notice on a sign facing the roadway near the frontage of Lot 19 to Alutha Road and was to remain there for a period of 21 days. Those orders have been complied with and no interested party has appeared on this application. That form of notice was permitted because of the in excess of 260 potential landowners and residents who might have been interested in this application.

3. The Brisbane City Council (“the Council”) was notified of the circumstances of the application and the material in support of it prior to filing the application on 8 January 2004. The Council has indicated that it has no objection to the easement being extinguished and there are no planning considerations which would impact upon any such decision, s 181(2) and (7).

4. Relevantly s 181(1) of the Act provides

“Where the land is subject to an easement or to a restriction arising under covenant or otherwise as to the user of the land, the court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement or restriction upon being satisfied –

1. that because of the change in the user of any land having the benefit of the easement or restriction, or in the character of the neighbourhood or other circumstances of the case which the court may deem material, the easement or restriction ought to be deemed obsolete; or

2. that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or [and] that the easement or restriction, in impeding that user, either -

1. does not secure to person entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or

2. ...

3. ...

4. that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction.”

5. In Ex parte Melvin [1980] Qd R 391 Kneipp J concluded at 391 that the insertion of the word “or” in s 181(1)(b) was by mistake and the word which should have been used to give effect to the legislative intent was “and”.  His Honour read the provision accordingly having pointed out the great difficulties which would ensue if “or” were to remain.  That decision has been followed in Queensland, for example see, Re Rollwell Australia Pty Ltd No 34 of 1998 (Rockhampton), 1 October 1998; and Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488.

6. The subject easement was created pursuant to cl 4 of the will of the late Jessie Paten executed in 1925. The purpose of the easement was to allow access to what is now called Alutha Road and from there to Waterworks Road for the testator’s son Harry who had been given the land which came to be the dominant tenement inter vivos.  The servient tenement, owned by Jessie Paten at his death, fell into his residuary estate for the benefit of his other children.  Harry Paten’s access to what was then Three Chain Road and is now Mt Nebo Road was precluded by steep and rocky terrain.  The easement was created by means of an indenture registered at the Titles Office in 1938 after the death of Jessie Paten in 1930.  At the time of the grant of the easement the dominant tenement comprised an area in excess of 213 acres.  Since then that land has been closely subdivided to produce 266 separate parcels of land.  The subdivision history of the dominant and servient tenements is set out in the exhibits to the applicants’ material which has been meticulously researched and presented.

7. The contemporaneous plans and maps which have been exhibited to the material show that at the time of the will the road network to which the dominant tenement had access was quite limited. The arterial road connection was by Waterworks Road with access to it being provided via Hilder Road and a small section of what is now Alutha Road.

8. Since the grant of the easement Alutha Road has been substantially extended. There is now an extensive road network connecting the dominant tenement out to Waterworks Road. It is clear that the situation today is vastly different from that which prevailed when Jessie Paten recognised the need for an easement for the occupier of the dominant tenement. Today the road layout required by the Council for the development of the dominant tenement does not permit transit via Alutha Road to Waterworks Road or, more precisely, Mt Nebo Road but rather allows access to Waterworks Road through a series of streets then to Hilder Road and to Waterworks Road. Traffic and other planning considerations dictated that direct access onto Mt Nebo Road from the easement was undesirable.

9. The applicants purchased part of the land over which the easement was granted in 1971. The land was described as Lot 2 on RP 111797. The applicants depose that when they purchased the land there was no sign of use of the easement and to their knowledge it had been used by two people on three occasions in vehicles since then. The last occasion was about five years ago. There has been some limited pedestrian use of a pathway located on the easement land.

10. The applicants subdivided their land into 21 residential lots under a plan titled “The Gap Forest Park Estate.” It included new roads and three access restrictions strips. An excess restriction strip being Lot 52 on RP 811401 lying along the northern side of the easement was transferred to the Council preventing direct access to Alutha Road from the dominant tenement subdivision.

11. The applicants also own Lot 21 which is adjacent to Lots 19 and 20 but is not subject to the easement. They wish to develop the three lots by further subdivision. The minimum size for lots is about 400 sq metres. But for the existence of the easement they would be able to effect a more satisfactory subdivision.

12. The applicants contend that the easement is “obsolete” within the meaning of s 181(1)(a) of the Act. Section 181(2) provides

“In determining whether a case is one falling within subsection (1)(a) or (b), and in determining whether (in such case or otherwise) an easement or restriction ought to be extinguished or modified, the court shall take into account the town plan and any declared or ascertainable pattern of the local government for the grant or refusal of consent, permission or approval to use any land or to erect or use any building or other structure in the relevant area, as well a the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance.”

As Mr T Quinn for the applicants has submitted, the relevant considerations for a court to take into account are set out in the statutory provisions and the inquiry is essentially one of assessment of the facts of the particular case, Treweeke v 36 Wolsley Road Pty Ltd (1973) 128 CLR 274 at 302.  Since the need for the provision for the easement made in Jessie Paten’s will in 1925 and the registering of the easement in 1938 the process of subdivision of the dominant tenement has involved the dedication of land for public roads and the provision of those roads which now provide a safe and satisfactory means of access to the arterial road system.  The pattern of subdivision of the dominant tenement and the road network created thereby has made vehicular access directly via the easement to Alutha Road impossible or impractical.  The existing pathway and adjacent fencing of the dominant tenement blocks next to the access restriction strip provides a physical barrier to the balance area of the easement. 

13. As to “obsolete”, Ambrose J in Re Eddowes [1991] 2 Qd R 381 said at 391

“If a time comes when the purpose for which an easement has been granted can no longer be achieved, then in that sense the easement has become “obsolete”: see In re Truman, Hanbury, Buxton & Co Ltd’s Application [1956] 1 QB 261 at 272 per Romer LJ.  The term “obsolete” means “no longer relevant to the circumstances presently obtaining”: see Hunton (C) Ltd v Swire [1969] NZLR 232 at 234 per Wilson J and Re Miscamble’s Application [1966] VR 596 at 601 per McInerney J”. 

In Truman’s case Romer LJ observed at 272 that the character of an estate as a whole sometimes gradually changes.  In that case covenants protected the residential amenity of the area which had become largely commercial.   

14. Recently in Re Rollwell Australia Pty Ltd the Chief Justice referred to these authorities with approval.  He was concerned to apply s 181(1)(b) and concluded on the facts of that case that the continued existence of the easement would impede a reasonable user of the servient tenement.  That is also the situation here. 

15. Since there is available to the occupiers of the dominant tenement land a relatively recently established road network there are no practical benefits secured for the dominant tenement, a factor to which the court has regard, s 181(1)(b)(ii). As a corollary, the extinguishment of the easement “will not substantially injure” those entitled to the benefit of the easement, s 181(1)(d). There seem to me to be no future circumstances, such as were addressed by Ambrose J in Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488 at 501, to consider. 

16. I am persuaded that an order for the extinguishment of the easement ought to be made. Accordingly I order that Easement A on RP 55365 over Lots 19 and 20 of RP 811402 registered pursuant to Transfer Dealing No A 383126 in the Office of the Registrar of Titles on 10 November 1938 be extinguished.