Western Australia’s land titles system “is a system of title by registration.”1
This means that, once an instrument is registered at Landgate, the title to the interest conveyed in that instrument is indefeasible (subject to very limited exceptions), curing all defects in the period leading to registration. This is the foundation of the Torrens system and is enshrined in the Transfer of Land Act.2
This principle was recently reinforced by the WA Supreme Court in Saldanha v City of Belmont.3
In Saldanha, an easement conveying a right of carriageway benefitting the City of Belmont (City) was registered on Saldanha’s land (Lot 337) pursuant to a planning condition. The previous owner of Lot 337, the elderly Mr Callaghan, had applied to the City for approval to undertake a triplex development on Lot 337. The City approved the development, subject to (amongst other things) an easement being registered on Lot 337 (at no cost to the City) to “facilitate the orderly movement of vehicular traffic associated with the subject land.”4
The approved plan depicted this easement as providing access to the two rear units of the proposed triplex development and extended along the boundary of Lot 337 and the neighbouring land which contained a single dwelling (Lot 339). The plan showed a fence running along this same boundary between the two neighbours.
The wording of the easement deed, drafted by the City’s solicitors, went beyond what was required in the planning approval, in that the easement was not confined to the facilitation of traffic associated with the triplex at Lot 337, but was granted generally “to the City and… other persons from time to time authorised by the City… full and free right, liberty, power and authority from time to time and at all times hereafter to go, pass and repass for all purposes…”.
The easement was registered in 1993. In 1995, the City approved a plan for the construction of a triplex development on Lot 339. The proposed rear units of this new development would have no road access, and as such a condition of the planning approval was for the applicant to negotiate for the use of the easement.
There is no evidence of such agreement being reached. The occupants of the two rear units at Lot 339 used the easement land between 1996 to 2015 with no formal arrangement in place.
In 2014, Saldanha purchased Lot 337 and wrote to the City indicating their intention to withdraw the easement burdening their land and erect a fence along the boundary of Lot 337 and Lot 339. In response, the City entered into formal agreements with the two rear units at Lot 339, officially authorising them to use the easement to access their units.
The City also sought declaratory and injunctive relief which was granted at first instance. On appeal, the Court of Appeal found that the City’s registered interest in the easement is indefeasible, despite it authorising usage which was broader than what was required under the initial planning approval.
In the absence of fraud, the registration of the easement deed gave the City an immediate indefeasible title to the easement, irrespective of the validity of the easement being granted prior to the registration.
The Court in Saldanha illustrated this principle with the following cases:
There are very limited circumstances in which a court will overrule the indefeasibility of a registered interest.
In relation to easements, section 129C of the Act provides that a court may modify or discharge registered easements by application in limited circumstances.
It is notoriously difficult to successfully argue for the modification or extinguishment of an easement under this section, even where an easement has not been used and obstructed for lengthy periods. The courts are reluctant to “effect the expropriation of private property, namely, the right of a landowner to the benefit of [an easement], without compensation, unless completely satisfied that the benefit is valueless to such owner from a practical standpoint and does not secure him any practical benefit.”8
 Rich text editor, editor3, Press ALT 0 for helpBreskvar v Wall (1971) 126 CLR 376 .
 Rich text editor, editor4, Press ALT 0 for help1893 (WA) s 53, 63, 68.
 Rich text editor, editor5, Press ALT 0 for help WASCA 7.
 Rich text editor, editor6, Press ALT 0 for helpSaldanha v The City of Belmont  WASCA 7 .
 Rich text editor, editor7, Press ALT 0 for helpBoyd v Mayor of Wellington  NZLR 1174.
  1 AC 569.
 Rich text editor, editor9, Press ALT 0 for helpThe Owners of Corinne Court v Shean Pty Ltd  WASC 181; (2000) 23 WAR 1.
 Rich text editor, editor10, Press ALT 0 for helpSmith v Australian Real Estate & Investment Co Ltd  WAR 163 .