Supreme Court New South Wales Medium Neutral Citation: Denshire v Newcastle City Council [2017] NSWSC 577 Hearing dates: 10 May 2017 Date of orders: 10 May 2017 Decision date: 10 May 2017 Jurisdiction: Equity Before: Darke J Decision: Orders made for extinguishment of three easements. Catchwords: REAL PROPERTY – easements – extinguishment of easements – where extinguishment of easements a requirement of development consent – whether easements obsolete – whether extinguishment would cause substantial injury – easements extinguished subject to conditions Legislation Cited: Conveyancing Act 1919 (NSW), s 89(1) Cases Cited: Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28 Fincob Pty Ltd v Campbelltown City Council [2010] NSWSC 349 Laris v Lin (No 2) (2016) 18 BPR 35,917; [2016] NSWSC 560 Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592; [2003] NSWSC 67 Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 Re Mason and the Conveyancing Act [1962] NSWR 762 Tujilo v Watts (2005) 12 BPR 23,257; [2005] NSWSC 209 Category: Principal judgment Parties: Warwick Maxwell Denshire (First Plaintiff) Denshire Investments Pty Ltd (Second Plaintiff) Newcastle City Council (Defendant) Representation: Counsel: Mr J Dooley (Plaintiffs) Solicitors: Richard Arthur Murphy (Plaintiffs) James Marshall, Legal Services Unit, Newcastle City Council (Defendant) File Number(s): 2017/74778 Publication restriction: None Judgment – EX TEMPORE 1. This is an application pursuant to s 89 of the Conveyancing Act 1919 (NSW) for the extinguishment of three easements. The easements are sought to be extinguished to facilitate satisfaction of a condition of an approval for a subdivision of certain land in Fletcher (near Newcastle), namely, lot 33 in deposited plan 1062020 ("lot 33"). That land is owned by the second plaintiff, Denshire Investments Pty Limited. The first plaintiff, Mr Warwick Denshire, is the owner of lot 31 in deposited plan 869101 ("lot 31"). 2. Lot 31 is burdened by the three easements sought to be extinguished, which are: 1. a right of carriageway 15 wide created by deposited plan 860243 on 9 August 1996; 2. an easement for drainage of water 15, 17.5 wide and variable created by deposited plan 869101 on 16 June 1997; and 3. a right of access 15, 17.5 wide and variable also created by deposited plan 869101 on 16 June 1997. 1. The first of those easements also burdens lot 33, the second plaintiff's land, which is being subdivided. 2. Condition 2.3 of the development consent for lot 33 requires the dedication to Newcastle City Council (the defendant) of an area as a public road. Condition 3.46 of the development consent requires any application for a subdivision certificate to include documents providing for the release of any easement, including those affecting proposed public roads, made redundant by the development or by complying with the conditions of the consent. 3. There is evidence that the second and third of the easements described above will become redundant in the event that the area (which includes, and largely consists of, lot 31) is dedicated as a public road as envisaged by condition 2.3 of the consent. That is accepted by the Council, which has indicated that it consents to the release or extinguishment of those easements, subject to, and effective upon, the dedication of lot 31 as a public road. 4. The first of the easements described above (the right of carriageway 15 wide) is not said to become redundant in that way. Rather, it is contended (and there is evidence to the effect) that the easement is already redundant, in circumstances where each parcel of land that has the benefit of the easement now has access to a public street (Britannia Boulevard) either directly or by way of another legal right of access. Moreover, dwellings have been built upon six lots along the route of the right of carriageway. Those dwellings physically prevent access to or from the right of carriageway along at least part of its length. 5. The Council which, along with the owner of lot 22 in deposited plan 860243, has power to release the easement, has confirmed to the second plaintiff that it consents to the release or extinguishment of the easement. Whilst the evidence is not entirely clear on the point, it does appear from an examination of the plans in evidence, and also from the terms of the correspondence between the plaintiffs' solicitor and the Council, that the second plaintiff is relevantly the owner of lot 22 in deposited plan 860243 for the purposes of the power to release the easement. The Council has further indicated that the release or extinguishment of the three easements will satisfy condition 3.46 of the consent. 6. I note that the Council entered an appearance in the proceedings, but has not taken an active role. Its appearance was mentioned today by Mr Dooley of counsel for the plaintiffs. Mr Dooley tendered a letter from the Council to his instructing solicitors dated 9 May 2017, which indicates that the Council consents to the orders sought in the Summons. 7. There is evidence that on 23 April 2017, notices were delivered to each of the lots (save for three) which have the benefit of one or more of the three easements; that is, notices were delivered to each of the lots which have a completed residence upon it. The remaining three lots are either vacant land or contain only a partially constructed residence. In those cases the notice was sent by pre-paid post on 27 April 2017 to the respective owner's current mailing address, as advised by the Council. 8. The notices provide details of the plaintiffs' application and make it clear that extinguishment of the three easements is sought pursuant to s 89(1) of the Conveyancing Act. The notices also give details of the plaintiffs' solicitor and invite inspection of the Summons, and affidavits in support, at the solicitor's office in Newcastle. The notice further gives information about how and when to make any objection to the proposed orders. In short, objections in writing were requested to be made at the solicitor's office by 8 May 2017, and objectors were advised to attend the Court if they wanted their objections to be considered by the Court. 9. It appears that since 3 May 2017 the plaintiffs' solicitor, Mr Richard Murphy, has received approximately ten telephone calls from persons who had received the notice. Mr Murphy deposes that he gave each enquirer details of the nature of the matter and recommended that independent legal advice be obtained if they had any concerns. He further deposes that he has not since received any communication, whether written or verbal, to the effect that anyone wished to take any action in relation to, or become involved in, the proceedings. No one came to Court today to indicate that the extinguishment of the easements was, or might be, opposed. 10. The plaintiffs submitted that the easements ought to be deemed obsolete within the meaning of s 89(1)(a) of the Conveyancing Act. The term "obsolete" has, in that context, been held to mean that the original purpose of the easement is no longer capable of fulfilment, or perhaps serves no presently useful purpose (see Re Mason and the Conveyancing Act [1962] NSWR 762 at 764; Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28 at [3]). 11. I am satisfied on the evidence that the first of the easements (the right of carriageway 15 wide) should in the circumstances be deemed obsolete within the meaning of s 89(1)(a). The right of carriageway was evidently intended to provide access to a public road, namely Minmi Road. The presence of the dwellings along its route means that it cannot be used as originally intended. Further, there presently exists, for the parcels of land that have the benefit of the easement, convenient alternative means of access to Britannia Boulevard which leads a short distance to Minmi Road. (I note that these alternative means of access include the right of access which burdens lot 31, the third of the easements the subject of the application.) In these circumstances, I consider that the easement serves no presently useful purpose. 12. As for the second and third easements, the plaintiffs submit that they will serve no useful purpose once lot 31 is dedicated as a public road. That may be so. However, I do not think that the easements ought thereby be deemed obsolete within the meaning of s 89(1)(a). The easements are each presently capable of being used for the purpose for which they were granted, and continue to serve a useful purpose. 13. It is true, as pointed out by the plaintiffs, that an order for extinguishment may be made under s 89 subject to conditions, including that the extinguishment only take effect upon the happening of an event in the future (see Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420 at 425; Loclot Pty Ltd v Pullen (2003) 56 NSWLR 592; [2003] NSWSC 67 at [14]; Fincob Pty Ltd v Campbelltown City Council [2010] NSWSC 349 at [60]-[68]). The prayers for relief in respect of the second and third easements are expressed in that way. The extinguishment is expressed to be subject to, and effective upon, the dedication of lot 31 as a public road. However, s 89(1)(a), insofar as it concerns the concept of obsolescence, seems to me to be directed at an existing state of affairs. I do not think that it extends to obsolescence that would arise upon the happening of an event in the future. 14. In any case, I think that there exists an alternative basis for the orders sought in respect of the second and third easements. That alternative basis is s 89(1)(c) of the Conveyancing Act. 15. By s 89(1)(c) the Court is empowered to extinguish an easement if the proposed extinguishment will not substantially injure the persons entitled to the easement. It has been held that a substantial injury within the meaning of s 89(1)(c) means an injury which has present substance, not a theoretical injury, but something which is real and has present substance (see Re Mason and the Conveyancing Act (supra) at 764; Tujilo v Watts (2005) 12 BPR 23,257; [2005] NSWSC 209 at [37]; Laris v Lin (No 2) (2016) 18 BPR 35,917; [2016] NSWSC 560 at [74]). The kind of injury contemplated is injury to the relevant persons in relation to their ownership of, or interest in, the land benefitted (see Tujilo v Watts (supra) at [87]). 16. The proposed extinguishment is expressed to be subject to, and only effective upon, the dedication of lot 31 as a public road. Section 89(1)(c) poses the question whether the proposed extinguishment will substantially injure the persons entitled to the easement. I am satisfied on the evidence that in respect of each of the second and third easements, the proposed extinguishment will not substantially injure the persons entitled to the easement. Upon the dedication of lot 31 as a public road, the easements would cease to have practical utility. They would, as submitted by the plaintiffs, become redundant. None of the affected owners has suggested that the proposed extinguishment would cause them substantial (or any) injury. 17. It follows from the above that in respect of each of the three easements, the power of the Court under s 89(1) of the Conveyancing Act to extinguish the easement is enlivened. In light of the evidence concerning the easements and the conclusions set out above, and in the absence of any opposition to the making of orders as sought by the plaintiffs, I think it is appropriate for the Court to proceed to order the extinguishment of the three easements. 18. Orders will be made substantially in accordance with paragraphs 1, 2 and 3 of the plaintiffs' summons. The only variation to the form of orders will be the deletion in each case of the references to "release" of the easement. I note that no orders are sought in respect of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2017