Commonwealth v Registrar of Titles (Vic) [1918] HCA 17

: which the land is situated, he shall register it in the register and in the manner - as nearly as may be in which dealings with land are registered, and shall deal

with and give efiect to the notification as if it were a grant or conveyance or memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in that State or part of the Common-

See. 68 of the Transfer of Land Act 1915 ( Viet.) provides that " Whenever any. certificate of title . . . hereafter to be registered or issued . . . con- tains;any statement to the effect that the person named in the certificate is

of" any "land and the duplicate thereof as an encumbrance affecting the

same any subsisting easement over or upon or affecting the same which appears F to have been created by any deed or writing."

Pursuant to the Lands Acquisition Act 1906 the Commonwealth acquired - a block of land in Victoria, together with full and free right to the uninterrupted

OF AUSTRALIA. 349 access and enjoyment of light and air to the doors and windows of the building H. C. or A. or buildings erected or to be erected on the block of land first mentioned over 1918. _ astrip of land adjoining it. % - _~ Tue Com- Held, by Grifith C.J. and Gavan Duffy and Rich JJ., that the right over the MoxWEALTH

• adjoining strip of land so acquired was an easement at common law and as v. 'such might under sees. 68 and 73 of the Transfer of Land Act 1915 (Vict.) Se preee __ properly be specified upon the certificates of the dominant and servient tene- - (V1er.) ments ; and, therefore, that the Registrar of Titles was bound under sec. 20 of the Lands Acquisition Act 1906 to sct out on the certificate of title of the
• block of land acquired the right to light and air acquired by the Common-

Per Griffith C.J. : Even if the right to light and air acquired by the Common- wealth was not an easement at common law, the Registrar of Titles, being bound under sec. 20 of the Lands Acquisition Act 1906 to register the notice of acquisition and give effect to it as if it were a transfer, was bound to set out the right acquired upon the certificates of title.

_ Decision of the Supreme Court of Victoria (Cussen J.): R. y. Registrar of 'Pitles; Ex parte The Commonwealth, (1917) V.L.R., 576; 39 A.L.T., 59,

a notice dated 21st May 1915 published in the Commonwealth the Commonwealth notified that it had acquired under Lands Acquisition Act 1906 a parcel of land at St. Kilda in ria, a full description of which was set out, "together with aid free right to and for the Commonwealth of Australia and to for the registered proprietor or proprietors for the time being land firstly above described, or any part thereof, and its, his

interrupted access and enjoyment of light and air to the doors

windows of the building or buildings erected or to be erected e land firstly above described over and across all that strip of d 10 feet wide adjoining the eastern boundary of the said land above described."

for registration pursuant to sec. 20 of the Lands Acquisition A certificate of title was on 25th October issued in the name the Commonwealth in which the right to light and air appeared following terms: " Together also with the right to the rupted access and enjoyment of light and air over and

across the" adjoining strip of land "to the doors and windows of any building or buildings standing on the " block of land acquired. The Commonwealth then requested the Registrar of Titles to amend the certificate in accordance with the notification of acquisi- tion. This the Registrar of Titles refused to do. He also refused a request to state a case for the opinion of the Supreme Court under sec. 238 of the Transfer of Land Act 4915, giving, by direction of the Commissioner of Titles, the following reason : - " As respects the registration of easements, the only authority which the Registrar has is to register existing easements. He has no authority to register a right to a future easement. The right to light and air through windows of any possible future building is not an existing easement but a right to a future easement. The established practice of the Office of Titles is to refuse to register such rights. T am satisfied that the practice is correct, and must decline to state a case. As at present advised, the power to take land would authorize the taking of easements in the future but not, I think, the present taking of future easements."

The Commonwealth then obtained an order nisi for a mandamus to compel the Registrar of Titles to issue a certificate of title showing thereon "the easements, rights, powers and privileges" acquired by the Commonwealth by the notice of acquisition.

The order nisi was heard by Cussen J., who discharged it: R. v- Registrar of Titles; Ex parte The Commonwealth (1).

From that decision the Commonwealth now appealed to the High Court.

Mann, for the appellant. The word "land" under sec. 5 of the

Lands Acquisition Act 1906 includes " any easement, right, power, or privilege over, in, or in connection with land" ; so that what the Commonwealth has acquired in this case over the adjoining land is more than a common law easement. :

(Grirrirx C.J. Is not the right acquired an easement at common law? See Ecclesiastical Commissioners for England v. Kino (2); Browne v. Flower (3).

(1) (1917) V-L.R., 576 ; 39 A.L.T., 59. (2) 14 Ch. D., 213. (3) (1911) 1 Ch,, 219.

u J. referred to Dalton v. Angus (1); Dyce v. Hay (2); General of Southern Nigeria v. John Holt & Co. (Liverpool)

case below was argued on the assumption that a right to light not an easement unless it was in respect of existing apertures. er the Lands Acquisition Act the Commonwealth has power to ke such a right as was acquired in this case absolutely against 'persons and for all time. In that respect the acquisition differs om a grant by the owner of adjoining land. If what is taken is in the definition of "land," the Registrar is bound to register der sec. 20. By acquiring the right as against all persons and time the right becomes an interest in land. The Registrar register the notification, and he must deal with it as nearly as be as if it were a grant. He must therefore modify the pro- isions of the Transfer of Land Act accordingly.

R. Macfarlan (with him Latham), for the respondent. There othing in any of the cases toshow that there may be a grant at e of a right to light or air, or that such a right would be an ease- See Halsbury's Laws of England, vol. x1., p. 327; Aldin v. Clark, Muirhead & Co. (4). Although by Statute an ment of this kind might be created as an interes onwealth Parliament has not purported to do so in this case. he effect of sec. 20 of the Lands Acquisition Act is that although law of Victoria requires that instruments dealing with land for the purpose of registration, be in certain forms, the mere

that a notice of acquisition of land is not in the form of a grant iveyance or instrument of transfer is not to prevent the Regis- rar from dealing with it as if it were a grant or conveyance or ument of transfer. If the right acquired here were in a grant ld not confer a right to the future access of light in respect of that might be built, as an interest in land distinct from a against a particular individual. The Registrar is not to anything but interests in land.

6 App. Cas., 740, at p. 823. (3) (1915) A.C., 599, at p. 61 ) 1 Macq., 305. (4) (1894) 2 Ch., 437, at p. 446.

[Gavan Durry J. referred to Mayor of New Windsor v. Stove (1).]

Gririt C.J. The Commonwealth, by a notification in the Government Gazette published under the Lands Acquisition Act 1906, acquired a parcel of land (parcel A) and also a right of way over an adjoining strip of land (parcel B), together with rights of drainage over parcel B and also a right expressed in the words: _ " together with full and free right to and for the Commonwealth o Australia and to and for the registered proprietor or proprietors for the time being of the land firstly above described, or any part, thereof, and its, his and their tenants, servants, agents, workmen, | and visitors to the uninterrupted access and enjoyment of light and air to the doors and windows of the building or buildings erected - or to be erected on the land firstly above described over and across all that strip of land 10 feet wide adjoining the eastern boundary of the said land firstly above described, which strip

shown cross hachured on plan hereunder." The Registrar of : Tith existing easement. Whatever it is, it is a right in respect of land,

refuses to register this right on the ground that it is not an

and it has been acquired by the Commonwealth under its power

to aequire "land," which term includes " any estate or interest in land (legal or equitable), and any easement, right, power, or privilege :

over, in, or in connection with land " (sec. 5), It is also clear that the complete and exclusive dominion which the proprietor of parcel B had in that parcel has been diminished to the extent of the right - which had been so acquired and added to the property of the Commonwealth. 2

The present application relates to the registration of the right - in respect of the title to parcel A, which, if it is registrable at all, is required by sec. 68 of the Transfer of Land Act. No application - to register in respect of the title to parcel B, which registration is

asly more important to persons desiring to deal with that H.C. or A. , and which is provided for by sec. 73, is made. I think that -

such cases the Registrar of Titles should, as far as he can, ate

ndeavour to ensure registration in respect of the servient as well om

the dominant tenement. This, however, appears to be not Recistrar

is contended that the right is not an easement because it is Gsm ca.

t enjoyed in respect of any existing building. This argument

s to me to confuse the existence of a legal right with the present sical enjoyment or exercise of it, and also to treat the easement ppurtenant not to the land but to the building. Again, it is that the easement of light can only exist in respect of existing ned apertures. Here, again, there is a confusion - between a it and the mode of its acquisition. It has always been held an easement, which is an incorporeal hereditament, lies in grant. in easement of light has generally been rested on prescription, that on long and uninterrupted enjoyment, from which, it is said. a should be presumed. The presumption, of course, assumes 0 ity of a valid grant. But, since the enjoyment could only been of definite apertures, no such prescription could arise it in the case of their existence. The foundation of every lied or presumed agreement or grant is that it must have been tended by the parties, and in the case of vacant: land adjoining ther vacant land no one could suppose that the owners must have ended that neither should ever interfere with the other's light. it these difficulties do not arise in the case of an express grant, i ch may in general be formulated in any way the parties please.

Ttis said that there is no reported decision in which a grant of a neral easement of light has been supported, and that it must be n that the list of possible easements is closed. Lord St. Leonards

1 the changes that take place in the circumstances of mankind." recent instance of a novel easement is to be found in the case Attorney-General of Southern Nigeria v. John Holt & Co. (Liver- pool) [td (2).

(1) 1 Macg,, at p. 312. (2) (1915) A.C.,'at p. 617.

In the course of argument I referred to several possible easements

novel in kind. For instance, an easement or servitude for the -

passage of aeroplanes through the superjacent air of the servient tenement to a landing place, for the passage of an electric current through suspended wires passing through that air, for the free passage of the flash from a heliograph station. Why not also of the sun's rays over the servient tenement, not indeed on the surface of the soil,

All these would be servitudes of a right of passage

but through that which, usque ad coelum, is a part of the land. In the olden days air was not thought of as a subject of property any more than as a substance capable of being liquified or solidified. In the light of modern knowledge, however. there is no difference in principle between a right to the free passage of moving air to my windmill and the free passage of running water to my watermill.

I have no difficulty, therefore, in saying that on principle such a right as is claimed is an easement at common law. And I know of

But if there were any room for doubt on the point, the doubt is, in my opinion, set at rest by the Lands Acquisition Act. It is not disputed that the number of existing kinds of easements may be increased by Statute. I have already pointed out that under the Act any part of the dominion of the owner of land may be taken from him separately from the soil and vested in the Commonwealth. The right now in question is a right of dominion of the same kind as those which fall within the category called easements. If no more were said, it would follow that a formal transfer of it would be effectuated by the form of conveyance appropriate to property of that kind. The Act expressly provides that the notification itself shall operate as a transfer of what is taken, and sec. 20 requires the Registrar of Titles to deal with it by registration in the manner in which dealings with land are registered, and to give effect to it as if it were an instrument of transfer of the land (which. of course, means so much of it as is taken) to the Commonwealth, duly executed under the laws of the State. That is to say, he is to treat it in the

same way as he would treat a transfer, namely, by entering it upon

no authority binding the Court to hold otherwise. This aspect - of the case was not presented to Cussen J.

title. There is no ambiguity in the language. It is to be treated as a transfer, whether under the domestic law it would be go treated or not. The law of the Commonwealth is part of the Jaw of the State, and the Act which allows such a right in respect of land to be created and transferred to the Commonwealth, whether it does or does not add to the list of interests in land already trans- ferable under the State law, at any rate puts this right in respect of land, when acquired by the Commonwealth and transferred by _ notification, on the same footing as land transferred.

For this reason, also, I am of opinion that there is no valid answer _to the motion. -

Gavan Durry anv Ricu JJ. We agree with the Chief Justice thinking that the right which the Commonwealth has assumed to take in this case is an easement such as might be created at

'and should therefore be registered under the provisions of sec. 20 of the Lands Acquisition Act 1906, The owner of a parcel of land _ is primd facie entitled to all the light and air which would naturally "pass to it across his neighbour's land, but that right is subject to

constitute an easement at common law if it did more than sure to the dominant tenement the passage of light and air to and

was both too large and too uncertain to constitute such an easement. We can find no reason either in principle or authority this view of the law. An easement is appurtenant to and for e benefit of the dominant tenement as a whole, and not to or for

er of the servient tenement of what is really his right to build and when he chooses on his own land, but what for convenience we may call his right to obstruct the passage of light and air across

~ 'THe Com- MONWEALTH v REGISTRAR or Tires (Vier.)

his land, may be either total or partial. The part abandoned is so much of the whole as is inconsistent with a right in owner of the dominant tenement to the uninterrupted access enjoyment of light and air to the doors and windows of any b

In the circumstances it is unnecessary to express any opil as to the construction of sec. 20 of the Lands Acquisition Act 1906, -

Appeal allowed. Order appealed from discharged, Order for mandamus absolute with Respondent to pay costs of appeal.

Solicitor for the appellant, Gordon H. Castle, Crown Solicitor fo the Commonwealth. k

Solicitor for the respondent, E. J. D. Guinness, Crown Solicito a for Victoria.