Heading
Amended LTO Position
• Whether an applicant is likely to suffer ‘serious hardship’ will depend on all the facts of the case, including all the subjective circumstances of the applicant;
• Financial hardship is not conclusive evidence of ‘serious hardship’, but can be taken into account as part of the subjective circumstances of the applicant; and
• If a dominant tenement would be landlocked without benefit of the easement in question, that is very persuasive evidence in favour of finding the applicant would suffer serious hardship
Heading Abandoned (s.108 LTA) vs Obsolete (s.84C CLPA)
Section 108 of the LTA
• There is no mental element
• Non-use for the prescribed period of 20 years is conclusive evidence of abandonment
Section 84C of the CLPA
• There are 2 elements required for obsolete to be proven:
(a) physical element of use
(b) mental element of current and future use and enjoyment
• Both options should be considered.
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Heading
Overriding Interest Applicability
For the purposes of Part XVA:
overriding interest means –
(a) any condition or covenant, not arising under a lease or an agreement for a lease, that has the effect of imposing a restriction on the use of the land subject to it;
(b)any easement or profit a prendre to which any land is subject;
(c) any restriction on the use of land arising by reason of a notation on a folio of the Register or on any map or plan lodged in the office of the Recorder;
(d)any statutory right of user referred to in section 84J
(a), (b) and (d) are self explanatory.
Heading
(c)any restriction on the use of land arising by reason of a notation on a folio of the Register or on any map or plan lodged in the office of the Recorder;
The Land Titles Office Practice Book – 3rd Edition (‘the Practice Book’) p.298 states:
“Before 17 July 1978 the Recorder removed notations by an ad hoc procedure, only with consent of all persons who could benefit from any easement created thereby. There has always been uncertainty as to the effect of these notations, and s84C(2) specifically provides that the section applies notwithstanding such uncertainty. See Dabbs v Seaman (1925) 36 C.L.R. 538 and Shepperd v Council of the Municipality of Ryde (1952) 85 C.L.R. 1.”
The above only relates to ‘notations’ on plans that were deposited with the Recorder before the proclaimed date of the Land Titles Act 1980 (‘LTA’) as section 106(3) of the LTA states that:
An easement shall not be implied from anything appearing on a plan deposited with the Recorder after the proclaimed date
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Heading Assessing an Application
If the Recorder is satisfied one of the limbs is made out there is a residual discretion: Pearson v Richardson [2012] TASSC 71 at [70].
That the use of the word "may" in s84C(1) might either be used in the sense advanced by the appellants as denoting the existence of a discretion, or as merely a term of enablement as the respondents argue, is made clear by the Acts Interpretation Act, s10A(1)(c) The word ‘may’ is to be construed as being discretionary or enabling as the context requires. As applied to sub section 1(b) it was found that it confers a discretion
First, there is overwhelming authority for the proposition that a discretion exists in relation to the types of provision represented by s84C(1)(a), (c), (d) and (e) Given the prominent consideration that these sorts of provisions enable serious inroads upon vested proprietary rights, there is every reason to think that Parliament meant there to be a discretion in relation to subs(1)(b)
This is important because even though in Pearson 84C(1)(b) was made out the application still failed (in those particular circumstances).
Heading Assessing an Application
(a) that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which it may deem material, the interest has become obsolete.
Pearson is the authority for the position that an applicant must show that the overriding interest either ‘serves no useful purpose’ or ‘is incapable of being fulfilled’
Paragraph 94 from Pearson says that:
The following is a summary of the established meaning of the provision, and of its operation in general.
• Obsolescence means that the relevant interest is currently incapable of fulfilment, or serves no useful purpose: Ashoil Holdings Pty Ltd v Fassoulas [2005] NSWCA 80 at [40].
• The Tasmanian provision requires an objective determination of obsolescence, and not whether the interest "ought to be deemed obsolete".
• If a restrictive covenant continues to have any value for the person who is entitled to the benefit of it, then it can rarely, if at all, be said to be obsolete; Re Robinson (above) at 281 – 282; Vrakas v Registrar of Titles (above) at [26]
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Assessing an Application
Cont’d
• Points in time that are relevant to the determination are Fistulas when the restrictive covenant was created, and when application for its extinguishment is determined: C Hunton Ltd v Swire [1969] NZLR 232 at 234.
• "The property" to be considered in the context of changes of character is the servient land: Re Greaves' Application (1965) 17 P & CR 57. The neighbourhood for the purposes of this provision is to be determined by the facts of this case
• A covenant is not obsolete if it is still capable of filling any of its original purposes even if only to a limited extent
Heading Assessing an Application
(b) that the continued existence of the interest would impede a user of the land in accordance with an interim order or planning scheme, or, as the case may be, would, unless modified, so impede such a user.
Paragraph 59 from Pearson:
It is clear from the language that the Parliamentary intention was to provide for the extinguishment or modification of overriding interests which impeded a user of land in accordance with the public planning process This would include the specifics of a user allowed by approval or permit However the meaning could have been made clearer by way of specific reference to such things as permits
If the continued existence of the interest is impeding a user of the land in accordance with the planning scheme or would (unless modified) impede such a user, the relevant use and the relevant provision(s) of the planning scheme must be identified as part of the application
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Heading Assessing an Application
(
c) that the continued existence of the interest would impede some reasonable user of the land for public or private purposes, not being a user referred to in paragraph (b) , or, as the case may be, would, unless modified, so impede such a user.
See paragraphs 55-57 from Pearson:
55 s84C(1)(c) also provides good reason to interpret the provision in the way contended for by the respondents.
This provision enables the extinguishment or modification of the interests if the appropriate tribunal is satisfied that the interest would impede "some reasonable user of the land for public or private purposes, not being a user referred to in paragraph (b), " Subsection (1)(c) operates in conjunction with subs(6), par(a) of which provides that an overriding interest is not to be extinguished or modified unless the tribunal is satisfied that in impeding the user of land it does not secure the person entitled to the benefit of the interest any practical benefits of substantial value or advantage to them
In this sense of its combined operation, subs(1)(c) has equivalents in other jurisdictions.
Heading Assessing an Application
Cont'd
See paragraphs 55-57 from Pearson (have never seen an application under this section):
56 The use of the word "some" in conjunction with reasonable user, suggests that the particular user or proposed user is to be considered in all of its relevant aspects, and not just general user type.
This type of provision has often been utilised in respect of particular instances of user, in the sense of the nature and extent of characteristics of a general type of use.[7]
57 The operation of subs(1)(b) might be gleaned from the area of operation of subs(1)(c).The latter excludes from its operation "a user referred to in paragraph (b)".
There is no reason to suppose that subs(1)(c) is to be generally construed in any different relevant way than its equivalents. Par (c) might be expected to deal with the specifics of a particular user, so par(b) might be expected to do the same.
The end result is that subs(1)(b) deals with such things which are in accordance with a planning scheme, and subs(1)(c) applies to a user of land where the land is not the subject of any zoning under an interim order or planning scheme, or where the particular user is not regulated at all.
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Heading Assessing an Application
(d) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the interest have agreed, either expressly or by implication, to the extinguishment or modification of the interest.
• Self-explanatory.
• Notices are critical as no reply could imply ‘have agreed’.
Heading Assessing an Application
(e)that the proposed extinguishment or modification will not injure the persons entitled to the benefit of the interest.
Paragraphs 101-107 from Pearson provides useful analysis:
101 The invocation of the jurisdiction under this provision depends on satisfying the tribunal that the proposed extinguishment will not injure the persons entitled to the benefit of the interest. It is a completely separate and independent basis for extinguishment or modification.
It is not a matter to be proved cumulatively to pars(a), (b) and (d). In a sense, the question under subs(1)(e) may well be answered by the resolution of the obsolescence debate. That the covenant is still capable of fulfilling its original purpose, or one of its original purposes, may implicitly suggest that its removal is likely to injure those entitled to its benefit.
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Heading Assessing an Application
(e)that the proposed extinguishment or modification will not injure the persons entitled to the benefit of the interest.
Paragraphs 101-107 from Pearson provides useful analysis:
102 As to the provision itself, there must be an injury which has present substance, and which is not merely hypothetical: Re Mason and the Conveyancing Act (1960) 78 WN (NSW) 925 at 928.
Injury may be of an economic kind e.g. reduction of the value of the land benefitted, or of a physical kind by way of loss of amenity: Frasers Lorne Pty Ltd v Burke (above) at [27]; Oleander Nominees Pty Ltd v The Owners of Lakeside Villas Strata Plan 14025 (above) at [49].
"Injure" means an injury which is more than trivial or inconsequential, and does not include simple inconvenience: Stanhill Pty Ltd v Jackson (above) at 238; Vrakas v Registrar of Titles (above) at [36].
Heading Assessing an Application
(e)that the proposed extinguishment or modification will not injure the persons entitled to the benefit of the interest.
Paragraphs 101-107 from Pearson provides useful analysis:
103 The proposed extinguishment or modification of the interest has to be shown as not injurious, and not the proposed development itself. The assessment of injury is done by comparison between the benefits initially intended to be conferred and actually conferred by the covenant, and the benefits, if any, which would remain after the covenant has been extinguished: Fraser v Di Paolo [2008] VSC 117 at [36]; Vrakas v Registrar of Titles (above) at [35].
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Heading
Common Issues with Applications
Common issues
• No supporting evidence or supporting material for certain statements made. Often random grand statements that have no substance.
• Uncertainty as to which paragraph of section 84C(1) certain evidence or supporting material relates to and sometimes is of no relevance at all to any paragraph including the one(s) apparently relied upon by an applicant.
• No order applied for.
• Persons with the benefit (whose estates or interests would be affected by the making of the order) not identified. Reference to current Volume and Folio should be provided as a minimum.
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Heading Notices
• S84E - The Recorder will give directions as to the giving of Notices to persons whose estates or interests would be affected by the making of the order once the Recorder is otherwise satisfied with an application i.e. mainly that an overriding interest exists and the information/evidence provided appears to be in order.
• There is no point giving Notices if the application is otherwise incompetent.
• Ordinarily we give Notice to TPC and the relevant Council (s 84E(5)
• The number of Notices to be provided is not grounds for dispensing with the requirement to provide notice.
Heading Numbers
In the 10 years to 12 April 2023, 32 Orders have been made.
35 applications have been cancelled due to:
• 15 withdrawn.
• 6 where incorrect application made - cannot make application in respect of an overriding interest having effect by virtue of a plan of subdivision.
• 14 refused – no reply to requisition or not satisfied.
19 20
Questions
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