Is the transfer capable of giving rise to an easement?
13The wording in Memorandum of Transfer J493622, which is additional to the transfer of land, is worded as a covenant rather than a grant of an easement. However, the litigation has proceeded on the basis that it is the effect of the document and not its description that is relevant (see Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73).
14Evershed MR, delivering the judgment of the English Court of Appeal in In re Ellenborough Park [1956] 1 Ch 131, identified the four characteristics of a valid easement (at 163):
(1)There must be a dominant and a servient tenement;
(2)An easement must "accommodate" the dominant tenement;
(3)The dominant and servient owners must be different persons; and
(4)A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
15The first three of these were not in dispute in these proceedings. If there is an easement then the plaintiff's land in Folio Identifier 4/219028 is the servient tenement and the second defendant's land is the dominant tenement. The easement accommodates the second defendant's land as the car park constitutes a benefit to its hotel business by allowing patrons to park there. The plaintiff and the second defendant are different persons.
16The plaintiff submitted that the fourth characteristic was absent from this purported easement as the right in respect of its land was incapable of forming the subject matter of a grant. In In re Ellenborough Park Evershed MR addressed this characteristic by considering three cognate questions (at 164): first, whether the rights purported to be given are expressed in terms too wide and vague in character; secondly, whether such rights would amount to rights of joint occupation or would substantially deprive the owner of proprietorship or legal possession; and thirdly, whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit. Consideration of these three cognate questions was approved by Santow JA (with whom Mason P and Beazley JA agreed) in Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389; (2002) 11 BPR 20,605 at [35]; 20,611. The plaintiff submitted that the second of these was to be answered affirmatively as the rights given to the owner of the dominant tenement by Memorandum of Transfer J493622 in respect of the plaintiff's land were so extensive as to substantially deprive the plaintiff of proprietorship or legal possession.
17In Copeland v Greenhalf [1952] 1 Ch 488 Upjohn J rejected a claim for a prescriptive easement which would allow the owner of the dominant tenement to deposit objects including vehicles on a strip of land. His Lordship said that the rights claimed in that case could not form the subject matter of an easement because they amounted to a claim for joint user of the land by the dominant owner. Such rights were practically a claim for "the whole beneficial user of the strip of land" and that it was "virtually a claim to possession of the servient tenement, if necessary to the exclusion of the owner; or, at any rate, to a joint user" (at 498).
18London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1993] 1 All ER 307 was a claim for an easement giving a right of way and a right for customers of the dominant owner's business to park on a part of the servient tenement. Judge Paul Baker QC, in what was strictly speaking obiter dicta, held that as a matter of principle an easement for car parking can be a valid easement and attempted to reconcile Copeland v Greenhalf with the earlier and possibly inconsistent case of Wright v Macadam [1949] 2 KB 744 in which an easement to store coal in a coal shed was upheld. The judge said that the two cases could be distinguished because their difference was a matter of degree, saying (at 315): "A small coal shed in a large property is one thing. The exclusive use of a large part of the alleged servient tenement is another". That is, the impact of the easement on the entirety of the servient tenement, as opposed to simply the part of the land in fact burdened, is relevant as to whether the purported easement detracts from the servient owner's proprietorship. The judge then posited a test as to whether or not in fact a purported easement is invalid by reason of its detraction from the proprietorship of the servient owner. He said that the touchstone of an easement that was invalid for this reason was that "the right granted in relation to the area over which it is to be exercisable is such that it would leave the servient owner without any reasonable use of his land" (at 317). On the facts before him the easement in question did not so deprive the servient owner and so the judge said that there was a valid easement. This test was applied by the English Court of Appeal in Batchelor v Marlow [2003] 1 WLR 764. As I shall examine below, it has also been applied by a number of authorities in Australia, but it probably no longer represents the law in the United Kingdom as a result of the decision of the House of Lords in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620.
19In Evanel Pty Ltd v Nelson (1995) 39 NSWLR 209 Brownie J upheld the validity of an easement for a "right of footway" for the dominant owner that excluded the servient owner from the relevant area of land at all times except on one day of the year. The relevant area was used by the dominant owner as a garden. His Honour considered that the fact that for one day each year the servient owner was not excluded from the land demonstrated that exclusive use of the land was not given to the dominant owner. His Honour also observed that the phrase "right of footway" has a particular meaning by virtue of Schedule 8 of the Conveyancing Act 1919 and that this meaning limited the use to which the dominant owner could put the land. While Brownie J acknowledged that the exception to the servient owner's exclusive use for one day each year did not prevent the dominant owner from having practically exclusive use, the limitation on the manner in which that exclusive use could be exercised (the "right of footway") distinguished that case from the situation in Copeland v Greenhalf, in which the claimed easement placed negligible limitations on the dominant owner's user. The limitation on the dominant owner's user in Evanel Pty Ltd v Nelson meant that there was not a surrender of proprietorship by the servient owner and so his Honour declared there to be a valid easement.
20Evanel Pty Ltd v Nelson appears to indicate that there can be a valid easement that excludes the servient owner from the area of land burdened by the easement if the dominant owner's permitted user of the easement is limited to be substantially less than proprietorship of the land. It is this limitation on user that permits the servient owner to retain proprietorship of the servient tenement despite being excluded from it: the right to enforce the limitation against the dominant owner is a measure of control over the land sufficient for the servient owner to retain proprietorship. This proposition is contrary to the test posited in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd as on that test a servient owner who is excluded from the servient tenement lacks a reasonable use of the servient tenement and so there could not be a valid easement, even if the dominant owner's user were substantially curtailed.
21The proposition also appears to be contrary to later NSW Court of Appeal authority. Clos Farming Estates Pty Ltd v Easton was a case involving a purported easement for a vineyard that allowed the dominant owner to enter the land and control it by means of planting, maintenance, harvesting, marketing, packaging and selling products. Santow JA, with whom Mason P and Beazley JA agreed, said (at [45]; 20,614) that it was "necessary to assess the degree to which the rights conferred interfere with the servient owners' exclusive possession of the site". His Honour approved Harada v Registrar of Titles [1981] VR 743, which expressly followed Copeland v Greenhalf. In Harada v Registrar of Titles King J rejected a claim for an easement for overhead power lines because the particular easement claimed would leave the servient owner "with very few rights over her property and [she] could do little more with it than move over it and park cars on it" (at 753).
22Santow JA applied this in Clos Farming Estates Pty Ltd v Easton, concluding that the servient owner's rights were so attenuated that he lacked exclusive possession because he was left with "merely his rights of residual recreational activities that are totally subordinated to the over-arching rights of" the dominant owner (at [46]; 20,614). Hence the touchstone for a valid easement appeared to be that the servient owner retained substantive user of the servient tenement, so if Clos Farming Estates Pty Ltd v Easton reflects the current state of the law it is not easy to see how one can maintain the proposition in Evanel Pty Ltd v Nelson that a right in the servient owner to enforce a limitation on the manner of user of the dominant owner is sufficient for a valid easement when the servient owner is excluded from the land.
23The Court in Clos Farming Estates Pty Ltd v Easton did not attempt to formulate an all-encompassing test for whether a purported easement is valid by reason of its interference with the servient owner's proprietorship. The judgment in the Court of Appeal does not refer to London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd but it appears to regard as the touchstone of validity of an easement that the servient owner retains substantive rights over and user of the land, which is similar to the requirement of a servient owner maintaining a "reasonable use" of the servient land from the latter case.
24At this point it is worth drawing attention to how these cases conceptualise the scope of the land subject to an easement. The distinction drawn between Copeland v Greenhalf and Wright v Macadam in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd was that the burden of the easement in the former affected the entirety of the servient tenement whereas in the latter it only affected a small area in a large estate. Hence when considering the effect of a grant of easement on a servient owner's proprietorship one ought to consider its effect on the servient owner's proprietorship of the entirety of the servient tenement. This would mean that some manner of user affecting a fixed area of land might be a valid easement if that area formed part of a larger servient tenement but the same user of the same fixed area of land could be invalid as an easement if it were part of a smaller servient tenement.
25Clos Farming Estates Pty Ltd v Easton tacitly accepted this proposition when (at [46]; 20,614) Santow JA rejected an argument that the easement was valid because the rights granted only touched part of the lot. His Honour said that this was insufficient to preclude a finding that the rights interfered too greatly with the servient owner's proprietorship and that the restrictions in the purported easement applied "to a very significant portion of the lot". If one ought not to look beyond the part of the servient tenement actually affected by the restriction then whether the purported easement affected a significant or insignificant portion of the land should not be a material consideration. The fact that the Court of Appeal did consider this matter indicates that the effect of the easement on the entirety of the servient tenement is relevant.
26Weigall v Toman [2006] QSC 349; [2008] 1 Qd R 192 also provides support for this proposition. This was an application for a declaration that an easement for the exclusive use of a garage on the servient tenement was invalid. Wilson J dismissed the application, holding that the easement was valid. His Honour considered Wright v Macadam and Copeland v Greenhalf and approved the distinction between them drawn by Judge Paul Baker QC in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd - that they differed because of the relative impact of the burdened part of the servient tenement on the servient owner's enjoyment of the entirety of its land. Wilson J also approved the test posited by Judge Paul Baker QC that asks whether the servient owner by the grant of the purported easement is left with any reasonable use of its land.
27In White v Betalli (2007) 71 NSWLR 381 the NSW Court of Appeal considered the effect of a by-law in a strata plan where the by-law provided the right to store a small watercraft in a particular area. McColl JA, who dissented, considered that the validity of the by-law depended on whether the right created by the by-law was an easement or restrictive covenant. Santow JA, with whom Campbell JA agreed, did not consider this to be a requirement. There was no clear decision as to whether, when determining the validity of an easement, one looks to the effect of the purported grant on the entirety of the servient tenement or only its effect on that portion of the land affected by the grant.
28As McColl JA took a view of the legislation that differed from that of the majority, it was necessary for her Honour to consider in detail whether the by-law created a valid easement. In contrast to Santow JA, McColl JA said that the by-law conferred on the purported dominant owner "exclusive use and enjoyment of the watercraft storage area" (at 417), and therefore it could not give rise to a valid easement because it attempted to convey on the dominant owner rights of occupation that would substantially deprive the servient owner of proprietorship. It is apparent that McColl JA considered the validity of the easement to turn on whether there was sufficient derogation from the servient owner's proprietorship of the portion of land actually affected by the easement, rather than the effect of that restriction on the entirety of the servient tenement. At [190] her Honour referred to the portion of the servient tenement affected by the easement and then said that the servient owner retained no use of "that section of [the servient owner's lot]" and that as a result there could not be a valid easement due to the detraction from the servient owner's proprietorship.
29Santow JA said that even if the by-law were required to give rise to a valid easement then he would have found it to create such a valid easement. His Honour said (at 389) that the area affected was a small one and that the by-law allowed "the continued use by the [servient owner] of the affected area, though subject to the [dominant owner's] right to store a small watercraft in the designated area" and therefore it was compatible with the servient owner's right of possession. The reference to the area burdened by the easement being a small one and the different language used in the extracted quote in referring to the servient owner's use of the "affected area" compared with the dominant owner's use of the "designated area" suggest that his Honour was thinking of a test akin to that in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd in which one looked to the effect of the burden of the easement on the servient owner's proprietorship of the entirety of the servient tenement. However, the statement was obiter dicta and his Honour only briefly considered the point. On the other hand, McColl JA was dissenting. Hence it is difficult to extract from this case a clear statement as to what portion of the servient tenement one ought to consider when evaluating the validity of an easement.
30The law in the United Kingdom has apparently moved on since then. Moncrieff v Jamieson was a case before the House of Lords on appeal from the Scottish Court of Session. While the case concerned the Scottish law of servitudes, the relevant principles identified apply equally to easements. The servitude in question gave a right of access to the dominant tenement for pedestrian and vehicular traffic. It was argued by the dominant owners that accessory to this right was a right not merely to drive and stop on the servient tenement but also to park on the servient tenement. In order to answer whether such a right was accessory it was necessary to determine whether this right to park could exist as a matter of law. Each of their Lordships delivered a separate speech. They all accepted that as a matter of principle a servitude for car parking could exist.
31Lord Scott of Foscote disapproved of the attempt in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd to reconcile Copeland v Greenhalf and Wright v Macadam on the grounds that the claimed easement in the former was the substantial part of the servient owner's land whereas in the latter it was only a small coal shed on a much larger block of land. His Lordship said at [57]; 2641-2642 that in considering whether a servitude (or an easement) was valid one should only look to the impact of the rights granted to the dominant owner on the servient owner's proprietorship of the part of the land that is actually subject to the restrictions of the servitude. This was because otherwise a servient owner could employ a "stratagem" of granting a servitude over part of its land and then selling the residue of the land not subject to the servitude so as to defeat the servitude. He said that such a stratagem would not work because one should focus on the land actually affected by the servitude and therefore the selling of the surrounding land is immaterial. However, I note that at [59]; 2642 his Lordship had regard to the potential for the servient owner to "build above or under the parking area". Strictly speaking the land subject to a servitude for parking, absent contrary intention, is the surface of the earth and sufficient air space to accommodate the vehicles that will park there, so it is not immediately obvious that the servient owner's ability to build above or below ought to be a relevant consideration on his Lordship's own criteria.
32Lord Scott went on to further disapprove the test in London and Blenheim Estates Pty Ltd v Ladbroke Retail Parks Ltd. His Lordship rejected the idea that for there to be a valid servitude there must remain to the servient owner a reasonable use of the servient tenement. While reserving some concerns about how one assesses what is a "reasonable" use, his Lordship's primary complaint about the test was essentially grounded in policy. In his view, a servient owner ought to be able to grant a servitude that deprives it of all reasonable use of the land in the sense that the servient owner should not be obliged to reserve to itself some substantive user of the land affected by the servitude. His Lordship seemed to consider it artificial and undesirable as a matter of policy that a right to park 19 cars in a space able to hold 20 cars could be a valid servitude but a right to park 20 cars in the same space would not be. His Lordship felt that once one accepted that a servitude for parking one car in a large area is valid then there is no reason why one should not also be able to validly grant a servitude that provides just sufficient room for the car without any additional space available for the servient owner in the affected area. His Lordship said that in this case the servient owner would remain the "owner of the land and in possession and control of it" (at [59]; 2642-2643). Thus the preferred test for validity of a servitude or easement would be "whether the servient owner retains possession and, subject to the reasonable exercise of the right in question, control of the servient land".
33Lord Neuberger of Abbotsbury supported Lord Scott's views, agreeing at [139]-[143]; 2663-2664 that there is no reason why a servient owner should not be able to subject its land to a servitude or easement where "the parties have chosen to identify a precise space in the area, over which the right is to be exercised, and the space is just big enough to hold the vehicle". However, his Lordship did express reservations (at [144]; 2664) about saying that exclusion of the servient owner from occupation, as opposed to possession, of the land subject to an easement would not prevent there being a valid easement. His Lordship was concerned that there might be unexpected consequences from such a decision that could "lead to the logical conclusion that an occupational licence should constitute an interest in land".
34The approached advocated in Moncrieff v Jamieson by Lord Scott and generally approved by Lord Neuberger differs substantively from that taken by the Court of Appeal in Clos Farming Estates Pty Ltd v Easton (and also the approach in London and Blenheim Estates Pty Ltd v Ladbroke Retail Parks Ltd). Two issues clearly emerge. The first issue is whether one examines the impact of the purported easement on the servient owner's proprietorship of only that part of the servient tenement that is actually affected by the easement or if instead one looks to the effect on the entirety of the servient tenement. The second is whether it is enough for a valid easement that the servient owner maintains possession and control or if this requires the servient owner to retain some substantive or reasonable use of the land.
35There does not appear to be a statement of authority in Australia since the decision of the House of Lords in Moncrieff v Jamieson that has determined which line of authority ought to be followed. The Court of Appeal of Western Australia considered an easement for car parking in The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180. Buss JA, with whom McLure JA and Murray AJA agreed, referred to the tests posed in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd and Moncrieff v Jamieson (at [63]-[64]). His Honour noted that Lord Scott doubted the correctness of the former, but he did not attempt to decide which, if either, were correct.
36In Brydall Pty Ltd v Owners of Strata Plan 66794 [2009] NSWSC 819; (2009) 14 BPR 26,831 McDougall J upheld the validity of a claim for an easement for car parking. His Honour said that the right of parking claimed was not so extensive as to deprive the servient owner of its proprietorship. The area claimed to be subject to the easement was less than 15 per cent of the overall area of the servient tenement. One of the issues in dispute was whether the rights given to the dominant owner were exclusive rights over the relevant land. His Honour said that even if the rights did endow to the dominant owner exclusive user of the part of the servient tenement affected by the easement and that as a result the servient owner was deprived of the whole beneficial use of the land subject to the easement this was not necessarily a relevant consideration (at [15]; 26,833). He said that this was because Copeland v Greenhalf may overstate the principle and doubt was cast upon it in Moncrieff v Jamieson. His Honour also said that the trend in Australian authorities was to ask whether the rights asserted by the dominant owner under the easement impeded the reasonable use of the servient tenement as a whole, citing Weigall v Toman. The fact that the easement burdened less than 15 per cent of the servient tenement meant that it would not impede the reasonable use of the servient tenement as a whole. This would appear to support the approach in London and Blenheim Estates Pty Ltd v Ladbroke Retail Parks Ltd and be contrary to the comments of Lord Scott in Moncrieff v Jamieson, despite the fact that McDougall J referred to that case with apparent approval when disapproving Copeland v Greenhalf.
37In Ryan v Sutherland [2011] NSWSC 1397; (2011) 16 BPR 30,101 there was a claim for an easement for "full and free exclusive use" of a portion of the servient tenement by the dominant owner. Black J reviewed the authorities and noted the divergence between the test in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd as applied in cases such as Weigall v Toman and Brydall Pty Ltd v Owners of Strata Plan 66794 on one hand and the statements of Lord Scott in Moncrieff v Jamieson on the other. His Honour did not attempt to decide which was the correct test but concluded that the rights in question would satisfy either test. In applying the former test, Black J identified that the burdened area was a relatively small part of the servient tenement and that the purported easement did not confer exclusive or unrestricted user of the whole of the servient tenement on the dominant owner as the servient owner retained possession and control of the part of the servient tenement not subject to the restriction. In applying the latter test, his Honour examined the limitations placed on the dominant owner's user of the easement, namely that it could only be used for recreation, gardening and erection and maintenance of facilities referrable to recreation and gardening. As his Honour put it, the dominant owner could not construct an industrial facility on the servient tenement. His Honour held that the servient owner retained possession and control of the part of the land subject to the easement and identified that one aspect of this retention of possession and control was "the ability to restrain the use of the land other than for the specified purposes" (at [23]; 30,108). This is similar to the line of reasoning adopted by Brownie J in Evanel Pty Ltd v Nelson.
38Insofar as Moncrieff v Jamieson is inconsistent with Clos Farming Estates Pty Ltd v Easton, I am bound to follow the latter. I do not think that the difference of opinion in White v Betalli renders that Court's earlier judgment in Clos Farming Estates Pty Ltd v Easton any less binding. Thus I am bound to follow the approach in Clos Farming Estates Pty Ltd v Easton and London and Blenheim Estates Pty Ltd v Ladbroke Retail Parks Ltd rather than Moncrieff v Jamieson.
39If the applicable test is whether there remains to the servient owner a reasonable use of the servient tenement in its entirety then I think that the purported easement under consideration here must be capable of being validly granted. It is true that the vast majority of the surface area of the land is affected by the easement. However, the plaintiff is permitted to build above the surface area into the airspace and also to use the subterranean space. The plaintiff thereby enjoys a very substantial user of the land.
40Moreover, even limiting consideration to the use of the surface of the land, the plaintiff is not excluded from the land but remains able to use the land in conjunction with the second defendant. The plaintiff can do as it pleases with the surface of the land insofar as this does not disturb the rights of the second defendant to park on the land. The plaintiff, its agents and its invitees and so on can park on the land. It is true that the second defendant and its patrons could entirely fill the car park and leave the plaintiff without any car spaces. This would no doubt substantially detract from the plaintiff's user of the land if this were to occur. But the practical reality is that both parties will use the car park simultaneously to a greater or lesser extent. An easement inherently involves tempering the servient owner's user of the servient tenement so as to accommodate the dominant owner's user. In a case such as this where the purported easement enables both the dominant and servient owners to share a resource, it is necessary to have regard to how the easement will be used as a matter of practice rather than focus unduly on the rights available to one party should the other exercise its rights to the maximum extent available if such an event is unlikely to occur. The plaintiff is able to use the car park and from a practical perspective the extent of its user is substantial in that there are 198 car spaces available for the patrons of both the plaintiff's and the second defendant's businesses to share. The plaintiff has far more than nominal proprietorship.
41Counsel for the plaintiff relied on Copeland v Greenhalf to impugn this easement by arguing that the ability of both the plaintiff and the second defendant to use the land amounted to a claim for joint ownership and was therefore an impermissible claim for beneficial ownership of the land. I do not think that the rights claimed in this easement rise as high as joint ownership as the second defendant is only able to use the land for car parking. In Copeland v Greenhalf the purported easement was claimed to arise by prescription, which meant that the extent of the dominant owner's user had to be determined from its practice over the years in how it used the land. The extent of user sought by the claimant was very broad and with reasonably insubstantial limitation. This was said by Upjohn J to be effectively a claim for joint ownership and I understand that that might be so where the dominant owner can use the land affected by the easement as it likes, because then the dominant owner's rights in the servient tenement have practically the incidents of ownership. But where the rights of the dominant owner are restricted such that it can only enjoy the servient tenement in a limited way and so the dominant owner's user is subject to the servient owner's right to enforce those limitations then that element of control in the servient owner means that there cannot be joint ownership. The plaintiff's right to limit the second defendant's user of the land to car parking means that the second defendant in no way could be said to have rights approaching joint ownership of the land.
42In saying that there is no claim for joint ownership when the servient owner has the right to restrict the dominant owner's user in this way, I recognise that Clos Farming Estates Pty Ltd v Easton is inconsistent with the proposition in Evanel Pty Ltd v Nelson that it is sufficient for a valid easement if there is a right in the servient owner to enforce a limitation on the dominant owner's user of the servient tenement despite the exclusion of the servient owner from the land. However, I think that this right to enforce a limitation on user is a relevant consideration when the servient owner is not excluded from the land, but is able to share use of the land with the dominant owner. Clos Farming Estates Pty Ltd v Easton does not bear upon that situation.
43In the event that the approach in Moncrieff v Jamieson ought to be applied as the test of the validity of this easement, I am still inclined to think that this is capable of being a valid easement as the plaintiff remains in possession and control of the land. It is not excluded from the land and it can use the land as a car park simultaneously with the second defendant. Moreover, the ability of the plaintiff to enforce the limitation on the second defendant's user - that it is limited to using the land as a car park - constitutes an ability in the plaintiff to control the land such that the defendant's rights do not derogate impermissibly from servient owner's proprietorship: see Evanel Pty Ltd v Nelson and Ryan v Sutherland (assuming in this situation that Clos Farming Estates Pty Ltd v Easton was not applicable authority).
44Even if Moncrieff v Jamieson is correct, the plaintiff's ability to use the airspace and subterranean space is relevant and points in the direction of a valid easement. As I noted above, Lord Scott referred to the use of the airspace as a relevant consideration despite his view that one should only look to that part of the land actually affected by the servitude. The ability to use the airspace and subterranean space is relevant because it bears upon how the plaintiff can use the surface of the land, being the part of the land subject to the easement. The plaintiff has the ability to use the surface of the land to support whatever developments it might choose to engage in above or below the surface. This is a very real user of the surface of the land and it demonstrates both a use of the land open to the plaintiff and the fact that the plaintiff remains in possession and control of the land.
45I conclude that the wording in the document could on registration give rise to an easement.