Hilldon Pty Ltd v J Y Building Material & Construction Pty Ltd
[2007] QSC 301
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Hilldon Pty Ltd v J Y Building Material & Construction Pty Ltd[2007] QSC 301
- Add to List
Hilldon Pty Ltd v J Y Building Material & Construction Pty Ltd[2007] QSC 301
Hilldon Pty Ltd v J Y Building Material & Construction Pty Ltd[2007] QSC 301
SUPREME COURT OF QUEENSLAND
CITATION: | Hilldon P/L v J Y Building Material & Construction P/L [2007] QSC 301 |
PARTIES: | HILLDON PTY LTD ACN 073 248 389 |
FILE NO/S: | BS 8388 of 2007 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 24 October 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 October 2007 |
JUDGE: | Martin J |
ORDER: | The application is dismissed |
CATCHWORDS: | REAL PROPERTY – EASEMENTS – EASEMENTS GENERALLY – ABANDONMENT, SUSPENSION OR EXTINGUISHMENT – EXTINGUISHMENT – where applicant’s land was burdened by an easement – where applicant seeks extinguishment of easement pursuant to s 181 Property Law Act 1974 (Qld) – whether easement obsolete – whether the easement impedes some reasonable user of the land – whether the proposed extinguishment will not substantially injure the respondent – whether the easement should be extinguished Property Law Act 1974 (Qld), s 181(1) Averono v Mbuzi [2005] QCA 295, applied C Hunton Ltd v Swire [1969] NZLR 232, cited Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488, applied Ex parte Proprietors of “A Veril Court” Building Units Plan No. 2001 [1983] 1 Qd R 66, distinguished Hoy v Allerton & Anor [2001] QSC 440, cited In re Truman, Hanbury, Buxton & Company Ltd’s Application [1956] 1 QB 261, cited In the Matter of an Application by Rollwell Australia Pty Ltd (1999) Q ConvR 54-251, considered Re Eddowes [1991] 2 Qd R 381, applied Re Mason and the Conveyancing Act [1962] NZLR 762, cited Re Miscamble’s Application [1966] VR 596, cited Re Parimax (SA) Pty Ltd (1954) 72 WN (NSW) 386, cited |
COUNSEL: | R A I Myers for the applicant J K Ratanatray for the respondent |
SOLICITORS: | John M O'Connor & Company Birch & Co Solicitors |
- MARTIN J: The applicant seeks an order extinguishing an easement over its land.
Background
- The applicant is the registered proprietor of land described as Lot 140 on Survey Plan 173869, County of Stanley, Parish of Goodna. Easement No. 601104380 burdens that land in favour of the registered proprietor of Lot 6 on RP 81171 and Lots 8 and 9 on RP 91455, County of Stanley, Parish of Goodna.
- The easement was granted by one of the applicant’s predecessors in title (Morris Woollen Mills) to the Commonwealth of Australia in 1954. It was one of a series of easements over adjoining lots the benefit of which vested in the Commissioner for Railways (Qld) consequent upon resumption of certain parts of the subject land, pursuant to the Railway Act 1947-53.
- The easement allows the grantee:
“…to enter upon the servient tenement and to erect construct lay complete use and maintain along upon or over the servient tenement any railway or railways, either with a single or double line of rails and with all proper and usual accessories in order to run or draw thereon locomotives carriages wagons trucks and other vehicles and rolling stock laden or unladen by steam electric or other motive power and to work and maintain upon the servient tenement any such railway hereto fore or hereafter built or constructed thereon and to make in or upon the servient tenement or any portion thereof cuttings embankments buildings and other erections bridges culverts drains and other works in connection with such railway and other works as the Grantee its officers servants tenants workmen agents and others authorised by the Grantee shall think fit and at any time to take upon remove or relay or alter the whole or any part of such railway and any works or accessories connected therewith and to work and use any such railway accessories and other works in or about the carriage of goods live stock or passenger traffic or otherwise as the Grantee its officers servants tenants workmen agents and others authorised by the Grantee shall think fit…”
- I was told, without objection, that the purpose of the easement was to allow a spur to be constructed from the main rail line to Morris Woollen Mills presumably so that raw and finished materials could be transported to and from the mill. After the mill closed the land associated with it was subdivided. Some time ago (there is no evidence as to when) the line was disconnected from the main line by Queensland Rail and parts of the line have been removed in many of the properties the subject of the easement, including the applicant’s property, Lot 140.
- In 2004 Queensland Rail approached the previous registered proprietor of Lot 140 and proposed that:
- Lot 140 be further subdivided into Lots 140 and 141,
- Lot 141 be transferred to Queensland Rail, and
- Queensland Rail would extinguish certain easements in its favour which burden Lot 140.
- At the time of those negotiations, the applicant was unaware that the respondent, among others, was entitled to the benefit of that easement across Lot 140.
- The immediately adjoining occupiers, other than the respondent, have agreed to execute a surrender of the benefit of the easement for the railway line and service as it traverses Lot 140.
- The applicant, through an affidavit by its solicitor says that it is “extremely anxious to proceed with the development of Lot 140 and to finalise plans for submission to Council for that purpose…”. No further evidence was given to identify the nature and extent of any proposed development, either by the applicant or any other person.
Basis of the application
- The application is made pursuant to s 181 of the Property Law Act 1974 (Qld) (“PLA”) and reliance is placed upon s 181(1)(a), (b) and (d). So far as is relevant to this application, s 181 provides:
“181Power to modify or extinguish easements and restrictive Covenants
(1)Where 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—
(a)that because of 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
(b)that the continued existence of the easement or restriction would impede some reasonable user of the land subject to the easement or restriction, or that the easement or restriction, in impeding that user, either—
(i)does not secure to persons entitled to the benefit of it any practical benefits of substantial value, utility, or advantage to them; or
(ii)is contrary to the public interest;
and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the extinguishment or modification; or
…
(d)that the proposed modification or extinguishment will not substantially injure the persons entitled to the easement, or to the benefit of the restriction.
(2)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 as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance.”
Principles to be applied
- An applicant seeking an order under s 181 has the onus of establishing facts sufficient to enliven one of the alternatives in s 181(1). See Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488.
- The Court should approach “an application for extinguishment of an easement on the footing that it is ‘a serious inroad upon the proprietary right which is vested’ in the owner of the dominant tenement.” Per Keane JA in Averono v Mbuzi [2005] QCA 295 at [19]; see further Re Parimax (SA) Pty Ltd (1954) 72 WN (NSW) 386 at 387.
- In order to demonstrate that an easement ought to be deemed obsolete it is not enough to show merely that rights are not currently being exercised to their fullest extent. As Ambrose J said in Re Eddowes [1991] 2 Qd R 381 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 L.J. 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.”
- To demonstrate that an extinguishment will not “substantially injure the persons entitled to the benefit” an applicant needs to show that any injury suffered is not one “which is real and has a present substance”. See Re Mason and the Conveyancing Act [1962] NZLR 762 at 766; Hoy v Allerton & Anor [2001] QSC 440 at [31]; and Averono at [26].
- In Ex parte Proprietors of “A Veril Court” Building Units Plan No. 2001 [1983] 1 Qd R 66 Matthews J, said, at 71, that before the discretion is exercised in favour of an applicant under s 181, there should be a “significant preponderance of circumstance on its side” in light of the “proprietary right of the respondent”. That approach is not, I think, required by the terms of s 181. It allows for a change to be made to an easement or a restrictive covenant upon demonstrating that the case falls into at least one of the four categories set out in s 181(1) and, in doing so, recognises and protects the interests of those having the benefit of the covenant or easement. I respectfully agree with the obiter observations of de Jersey CJ in In the Matter of an Application by Rollwell Australia Pty Ltd (1999) Q ConvR 54-251 at [20]:
“… I think it inconsistent with a modem approach to the construction of such provisions that one adopt a primarily conservative approach, or embark upon the exercise with a predisposition against interfering with the proprietary right of the owner. The provision does not in terms limit the discretion in that way, and the paragraphs in the subsection appear to be crafted in a way which ensures adequate safeguards for the protection of that important [r]ight.”
The Applicant’s Case
- In the written submissions provided by counsel for the applicant, reliance is placed upon s 181(1)(a) and (d). In the major affidavit relied upon (being that of the solicitor for the applicant) reference is also made to the applicant’s desire to develop Lot 140 which raises reliance upon s 181(1)(b).
- Curiously, while an affidavit of Leonard Neville Undy (described as the company manager of the applicant) was relied upon, it only concerned the fact that he had been involved in negotiations with representatives of the respondent. The only detail, what little there is, is contained in the affidavits of the applicant’s solicitor.
Is the easement obsolete?
- Section 181(1)(a) allows a finding that an easement can be deemed obsolete where there has been a change in the user of any land having the benefit of the easement, or in the character of the neighbourhood or other circumstances of the case which the Court may deem material. The Court is required by s 181(2), before it makes the determination sought, to 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 as the period at which and context in which the easement or restriction was created or imposed, and any other material circumstance. The applicant did not put any of that material into evidence. It relied only upon the facts that Queensland Rail no longer required the easement, that the rail tracks had been removed and that the respondent had not used the easement.
- As is pointed out above, the term “obsolete” means “no longer relevant to the circumstances presently obtaining”: see C Hunton Ltd v Swire [1969] NZLR 232 at 234 per Wilson J and Re Miscamble’s Application [1966] VR 596 at 601 per McInerney J. The applicant, in order to satisfy that test, must provide evidence of the “circumstances presently obtaining”. It did not. It did not provide any evidence of the use to which its land, or that of the respondent or of any other adjoining land, was being put.
- In the circumstances where there is a paucity of evidence, including that which the Court is required by s 181(2) to consider, the applicant has failed to establish the ground available under s 181(1)(a).
Does the easement impede some reasonable user of the land?
- Again, the applicant did not condescend to any particularity on this ground but relied on the (irrelevant) opinion of its solicitor as to the extent to which the easement was an impediment. There was no evidence of the nature of any proposed development nor anything to support a contention that the easement would impede such a proposal.
- As with s 181(1)(a), s 181(2) also requires that consideration be given to the matters in that subsection. In the absence of any evidence of those matters that, obviously, cannot be done. It follows that no finding in favour of the applicant can be made under s 181(1)(b).
Will the proposed extinguishment not substantially injure the respondent?
- The onus remains on the applicant to establish its case under the various heads of relief available. It has failed to do so under s 181(1)(d) as it has failed with other two heads. An applicant cannot simply rely upon an assertion that the easement is worthless or worth little. In Averono, Keane JA referred (at [26]) to the “absence of evidence that the extinguishment of the easement would not diminish the value of the respondents’ land” thus emphasising the need for an applicant to call evidence about changes in value which might occur upon extinguishment of an easement. In the absence of any evidence of value, the applicant has failed under this head as well.
Decision
- The application is dismissed.