6 Except for this one document creating an easement, searches including a Registrar General's Official Search have not located any registered document dealing with title to the passageway after the Grant. It is not possible to establish rigorously that there is no such document because of the nature of the register which is indexed to names of parties to documents. Macdonald, in various spellings, was a very common name in 19th Century Sydney as it still is. There are untraceably numerous possibilities about the names of persons who may have conveyed interests in the land, whether the five members of the Macdonald family referred to by name in the will or executors, administrators or other successors in title of any of them. Those five members of the Macdonald family (with the husband of one of them) purportedly dealt with title to the land when they granted the easement. Their interests under the will were equitable interests; under the law as it was in 1820, the legal estate in Hugh Macdonald's land passed to the trustees to whom it was devised in his will whether or not they took out probate; army officers may have soon left New South Wales; they may have done nothing in the estate, but they were entitled to deal with land devised to them even if they did not administer personal assets. The interests of Mary Ann Macdonald and her children were equitable interests and they could not convey the legal estate. Registration of deeds was not essential for validity in the absence of some competing dealing. Interests in land may have been conveyed by sheriffs under executions, or by bankruptcy receivers or like officers; the possibilities are endless. Under the law of that time husbands could, in some circumstances, effectually convey real property vested in their wives. All that can be said is that searches which appear to me to be reasonably complete show no registered dealings. I find that no owner of the passageway can be identified and I will deal with the application on that basis. "
8 I respectfully adopt the findings made by his Honour in that judgment. Similarly, in the second judgment his Honour explained the misapprehension felt at the time of the first judgment concerning the ownership of the twelve foot lane and indicated that his findings in the first judgment concerning the ownership of the eight foot lane extended to the ownership of the twelve foot lane. It is quite clear that the owner of the twelve foot lane cannot be located. As Bryson J has indicated, there is no basis on which it can be found that the defendant is the owner of the lane. No finding one way or the other is made on that matter, save for the finding that the owner cannot at the present time be identified or located. The question of the ownership of the lanes is left entirely open by me, as it was by Bryson J.
9 It must also be borne in mind when proceeding to consider the matter further that, as I have earlier said, Bryson J has already imposed an easement for light and air in favour of the building over the twelve foot lane.
10 The vital finding that must be made before an easement can be imposed under s 88K of the CA is a finding that the easement is reasonably necessary for the effective use or development of the land that will have the benefit of the easement. Bryson J made this finding in relation to the easements that his Honour granted in the first judgment and the second judgment, namely, that those easements were required for the effective use or development of the building, the relevant use or development being its use or development as commercial strata lots under the proposed plan of strata subdivision. The concept of reasonable requirement has been discussed in a number of cases. These include my decision in Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845; the decision of Hodgson CJ in Eq (as his Honour then was) in 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504; and see my decision in Woodland v Manly Municipal Council [2003] NSWSC 392 [6] ff and other cases there cited. One must also bear in mind when making a determination under s 88K the confiscatory nature of the statute: see Re Worthston Pty Ltd [1987] 1 Qd R 400; Tregoyd Gardens supra at 15, 854; and Woodland supra at [15] - [18] and the cases there cited.
11 The three easements sought in these proceedings all relate to small encroachments by the building or attachments to it upon the twelve foot lane. As I have said, the LPI has indicated that the title situation in respect of these encroachments must be regularised by the acquisition of easements before it will register the plan of subdivision. The encroachments are described in detail in a report of Mr Wager of Davenport Campbell, Architects.
12 The first encroachment is by part of a sprinkler system designed to give fire protection to the windows of the building overlooking the twelve foot lane. In the upper floors of the building, the sprinklers are outside the windows but within window recesses and therefore do not encroach on to the lane. However, in relation to the row of windows second from the ground in the southern wall of the building, there are seven sprinkler heads above windows, each projecting approximately 0.15 metres from the exterior of the wall. Each sprinkler and its head is approximately 0.10 metres long and 0.07 metres high. The sprinklers are located approximately 10 metres above the ground.
13 The second form of encroachment is by window ledges above the windows in the southern wall. There are 11 rows of ledges containing three ledges in each row. Each ledge is approximately 5.5 metres wide, 0.02 metres high and protrudes approximately 0.05 metres beyond the southern wall. The rows of ledges are located immediately above each window cavity. In a way these constitute the feature which it would probably be most difficult to deal with in any other way than by the grant of an easement. The reason for that is that they are an integral part of the fabric of the building and cannot be removed without damaging the fabric. That is important for two reasons. They are designed to flow rain water away from the window head and there may be the risk of water penetration if they are removed. Secondly, and probably more important because the building is listed on the State heritage inventory, the removal of the window ledges would require the approval of the New South Wales Heritage Council. The listing in the inventory requires the preservation of the external fabric and finishes of the building. It is dubious whether the permission of the Heritage Council could be obtained. In any event, there is a case arising from the heritage nature of the building, quite apart from the attitude of the Heritage Council, against the fabric of the building being interfered with in this way.
14 The third feature is the pipe. This is a single ventilation pipe. It is approximately 0.03 metres in diameter, commences about one metre above ground level and ends about four metres above ground level. It is located about five metres from the western edge of the southern side of the building. It is necessary to provide adequate ventilation for the gas meter room. Such ventilation is normally required by the service provider which employs persons to inspect the gas meters.
15 It may be that the sprinkler heads and the ventilation pipe could be more easily be removed or replaced than the window ledges could, for the reasons that I have set out above. Nonetheless, any of these alterations would interfere in some way with the heritage fabric of the building. The encroachments have existed for years or decades. The twelve foot lane is abandoned by the owner to the intent that the owner cannot be identified or located. The land is already burdened with the easement for light and air imposed by Bryson J, which would substantially interfere with its use or development, if development were possible, bearing in mind its nature as a twelve foot isolated strip of vacant land amongst city buildings. As Bryson J came to the conclusion that the imposition of the easement for light and air was reasonably necessary for the effective use or development of the building, I come to the same conclusion in respect of the three easements sought before me.
16 There is a requirement in subs (4) of s 88K of the CA for the provision in the order imposing the easement for payment by the applicant of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. Bryson J dispensed with the need for compensation in both the first judgment and the second judgment. He did so on the basis of a valuation report that indicated that the subject land had in each case not been diminished in value by the imposition of those easements. I have before me in respect of the imposition of these easements the evidence of Mr S S Eccleston, a registered valuer. Mr Eccleston gives evidence that the imposition of these easements would not diminish the value of the land. I have some scepticism as a non expert as to whether a restriction on the use of a narrow laneway in the central business district might not in the long run diminish its value by making its development less viable. Whilst obviously no development of such a small piece of land by the erection of a substantial building is viable, it seems to me there is always the possibility of a neighbouring owner acquiring such land and amalgamating it with another piece. However, as I have said, I am not the expert. I have no reason to doubt that Mr Eccleston has taken into account in an appropriate way all relevant considerations. There is no expert evidence to contradict his evidence that the value is not diminished. In these circumstances, for the same reasons as Bryson J gave in the first judgment and carried over into the second judgment, I determine that compensation is not payable because of the special circumstances of this case.
17 Bearing in mind again the confiscatory nature of the statute, it is important in my view that the easements should be restricted to the minimum necessary to accommodate the existing encroachments. I am not minded, for instance, to grant an easement over an envelope extending for some distance out from the southern side of the building to accommodate some future sprinkler or fire protection system. As I had indicated this to the plaintiff's representatives during the course of submissions, they have brought for filing a further amended summons in a form which attempts to meet this requirement by limiting the easements to the actual sites of the present encroachments, which they have had minutely described by Mr Wager. I should add that the nature and extent of those sites is further illustrated by photographs which have been appended to Mr Ireland's most recent affidavit. The precise relief as prayed for in the further amended summons is close to the form in which I am prepared to make orders, but I shall ask the plaintiff to bring in a minute of orders incorporating orders essentially in the form of the prayers of the further amended summons, with some amendments which I shall indicate, to permit orders to be made in accordance with the decision I have enunciated in these reasons.