Many commercial premises such as shopping centres have complex arrangements with respect to parking and access. The complex arrangements often arise as a consequence of progressive development and expansion without proper regard for protecting and defining legal rights of parking and access. The recent case of Maio v the City of Stirling (No 2) [2015] WASC 189 highlights not only the importance of registering your interests in land, but also understanding the rights which may run with the land in such circumstances.
A shopping centre was built on the subject land in the early 1980s. The owner of the shopping centre land subdivided the land into three separate lots, beings Lots 602, 603 and 604. The shopping centre was located on Lot 602.
A condition of subdivision approval required the owner of the shopping centre land to enter into a deed with the City of Stirling (City), whereby the owner would covenant with the City to provide access and reciprocal car parking rights between the existing shopping centre on Lot 602 and any future development on Lot 604. A deed to this effect was entered into between the shopping centre owner and the City in 1983 (1983 Deed).
Subsequently Lot 602 was subdivided into eleven strata lots in accordance with strata plan 11718. These lots were then on-sold to various purchasers. The plaintiffs in this case were three registered proprietors or tenants of lots of the strata plan and the strata company (Plaintiffs).
Lot 604 also changed hands a number of times. The new owners were required by the City to enter into deeds of covenant on equivalent terms to the 1983 Deed. In 2014, planning approval was granted for the erection of an office and residential development on this lot. Implementing this development on the terms of the planning approval would have prevented parking and access from Lot 602.
The Plaintiffs sought to prevent this development of Lot 604 and commenced proceedings in the Supreme Court of Western Australia.
The claims
The Plaintiffs claimed (among other things) that:
Findings
Le Miere J ultimately rejected the Plaintiffs’ claims.
Le Miere J held that in order to run with land, the covenant must touch and concern land of the covenantee. In this case, the deeds of covenant were in favour of the City, which was not an owner of the land subject of the covenants. Le Miere J also reiterated the concept that for a restrictive covenant to be enforceable in equity, it must be expressed in the negative.
Prescriptive easements arise where a person has used land for a continuous period of at least 20 years, as though that person held the benefit of an easement. As a preliminary comment, Le Miere J said that a prescriptive easement in favour of strata titled land cannot be in favour of the strata company itself, because the strata company is only responsible for the strata scheme and the common property (i.e. any easement claimed would fall outside that land). An easement in favour of strata titled land must therefore be claimed by an owner of land within the strata scheme.
Le Miere J was satisfied that Lot 604 had been used for parking and access by customers of the shopping centre for a continuous period exceeding 20 years. Le Miere J also identified that for a prescriptive easement to be recognised, the person must have used the land “as of right”, which means that the use was without secrecy, with the actual or constructive knowledge of the servient owner and without licence or permission. If a person has provided permission for land to be used, there can be no prescriptive easement.
Le Miere J found that customers of the shopping centre had been using the adjoining lot for parking and access “in enjoyment of a publically based licence or permission to do so” arising under the town planning framework. There was also an “implied licence or permission” from the owners of the adjoining lot for customers of the shopping centre to use the land for parking and access.
For these reasons Le Miere J rejected the argument that a prescriptive easement existed in favour of the shopping centre owners.
It is essential that owners of commercial premises properly document the intended arrangements with respect to parking and access, especially where multiple titles are involved.
Arrangements such as easements and restrictive covenants should be registered on the appropriate titles.
Registration ensures that subsequent purchasers of the relevant land (or anyone taking an interest in that land) does so subject to the interests registered on the title to the land. Properly documenting the intended arrangements will reduce the scope for potential future disputes, especially in the context of redevelopment and expansion.
