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Orb Holdings Pty Ltd  v WCL (QLD) Albert Street Pty Ltd: The need to understand rights of access und

The recent case of Orb Holdings Pty Ltd v WCL (QLD) Albert Street Pty Ltd (Judgment Delivered on 29 October 2019) is an example of the need to understand rights of access under an easement or other arrangement.

Beatrice Lane is located in the Brisbane CBD, it is L shaped and runs between Albert Street and Margaret Street.

WCL (QLD) Albert Street Pty Ltd (WCL) is the owner of lot 11. Orb Holdings Pty Ltd (ORB) is the owner of an adjoining piece of land – lot 12. On the Orb Land is a building with access to the car park of that building being gained over lot 11.

When the original plan was registered in 1876 it showed a number of lots (lots 1- 9 and lot 11) with the L shaped lot 11 running behind lots 1 – 9. It was marked "Right of Way" and was also marked with a notation "Lot 11 (Balance)". Persons could travel by foot or other means from Margaret Street to Albert Street across lot 11.

Historical documents indicate that during the 1880's lot 11 became known as "Beatrice Lane" and was in use as a public road.

The original owner sold all of lots 1 – 9 with the exception of Lot 11. In 1994 a certificate of title was issued for Lot 11 to the original owner. It showed the original owner as the registered proprietor in fee simple subject to no encumbrances. WCL subsequently acquired lot 11.

WCL recently began to develop the corner of Albert and Margaret Street and purported to close access across Lot 11 to Orb's building and car park. Orb brought an action for a declaration that:

  1. lot 11 had been dedicated at common law as a public highway or public road; and

  2. by section 369 of the Land Act 1962 title in lot 11 vested in the State of Queensland.

Orb's case was that, on the basis of the dedication of lot 11 as a public road, the public (including Orb) had a right of access over the land. Alternatively, property in lot 11 was vested in the State of Queensland, so WCL had no right to close the access.

The Court considered the history and arguments by WCL.

The court however noted that the Torrens Title system of land registration is a scheme of title by registration and that the only interest in land which is registered are those shown on the register subject to some minor exceptions. Accordingly, WCL's registration as the proprietor of an estate in fee simple of lot 11, free of encumbrances meant that lot 11 was not subject to any interest arising from the common law dedication of lot 11 as a public road prior to 1923. Registration also effectively extinguished any interest in lot 11 by the State of Queensland.

WCL was entitled to close the access to Orb's car park.

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