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Chapter 14

Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Easements Nature of an Easement Easements and natural rights Profi ts à prendre Rentcharge Essential Elements of an Easement Dominant and servient tenement The easement must accommodate the dominant tenement Dominant and servient owners must be different The easement must be capable of forming the subject matter of a grant Case: Re Ellenborough Park Case: Riley v Penttila Commentary Ancillary rights Different Forms of Easement New easement rights Grants and reservations Express easements and statutory powers Implied easements of necessity and common intention Easements of necessity Case: Adealon International Proprietary Ltd v London Borough of Merton Commentary Case: North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd Commentary Common intention easements Continuous and apparent easements Case: McGrath v Campbell Commentary Easements arising from construction Case: Dabbs v Seaman Commentary Easements arising under the non-derogation principle Case: Wheeldon v Burrows

14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11 14.12 14.13 14.14 14.14 14.15 14.16 14.17 14.18 14.19 14.20 14.21 14.22 14.23 14.24 14.25 14.26 14.27 14.28 14.29 14.30 14.31 847

Hepburn, Samantha. Australian Property Law Cases, Materials and Analysis, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=6221426. Created from vu on 2021-01-28 19:21:17.

14.1

Australian Property Law

Commentary Revision Questions Easements by Prescription Construction of Easements Case: Westfield Management Ltd v Perpetual Trustee Ltd Commentary Extinguishment and Modifi cation of Easements Extract: Conveyancing Act 1919 (NSW) — s 89 Extract: Transfer of Land Act 1958 (Vic) — s 73 Abandonment Case: Treweeke v 36 Wolseley Road Pty Ltd Commentary Case: Bookville Pty Ltd v O’Loghlen Commentary Extinguishment on the basis of a change in circumstances Unity of ownership Revision Questions Answer Plan

14.32 14.33 14.34 14.35 14.36 14.37 14.38 14.38 14.38 14.39 14.40 14.41 14.42 14.43 14.44 14.45 14.46 14.47

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Nature of an Easement 14.1 An easement is an intangible interest in land that confers upon the holder a right that is enforceable over one piece of land, known as the burdened land or the servient tenement, for the benefit of another piece of land, known as the benefited land or the dominant tenement. Despite its incorporeal nature, the easement is a form of real property and is enforceable in rem. As an incorporeal right, the easement does not confer possessory rights but rather, the benefit of a specific right. This means that the easement allows its owner to exercise a right against the servient tenement according to its scope and terms, but it does not confer any physical ownership in the land. The nature of the easement has been described by C J Gale, Gale on Easements, 1986 at [3] as follows: An easement may be defined to be a privilege without profit, which the owner of one neighbouring tenement has on another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner.

Th e easement evolved from what were originally known as ‘servitudes’ under Roman law. The connection that easements have with Roman law and their subsequent evolution under English common law was summarised by Sir William Holdsworth in Historical Introduction to the Land Law, Clarendon Press, Oxford, 1927, 265 (quoted by the English Court of Appeal in Re Ellenborough Park [1956] Ch 131): Th e industrial revolution, which caused the growth of large towns and manufacturing industries, naturally brought into prominence such easements as ways, watercourses, light and support; and so Gale’s book became the starting point of the modern law, which rests largely upon comparatively recent decisions. But, though the law of easements is comparatively modern, some of its rules have ancient roots. There is a basis of Roman rules introduced into English law by Bracton and acclimatised by Coke … The law, as thus 848

Hepburn, Samantha. Australian Property Law Cases, Materials and Analysis, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=6221426. Created from vu on 2021-01-28 19:21:17.

Easements

14.3

developed, sufficed for the needs of the country in the eighteenth century. But, as it was no longer sufficient for the new economic needs of the nineteenth century, an expansion and an elaboration of this branch of the law became necessary. It was expanded and elaborated partly on the basis of the old rules, which had been evolved by the working of the assize of nuisance, and its successor, the action on the case; partly by the help of Bracton’s Roman rules; and partly, as Gale’s book shows, by the help of the Roman rules taken from the Digest, which he frequently and continuously uses to illustrate and to supplement the existing rules of law.

Easements and natural rights 14.2 Easement rights should be distinguished from other non-proprietary rights over land. For example, all land ownership carries with it natural rights flowing from the character of the land. Thus, rights relating to the use of natural resources already on the land or rights to take advantage of light, shade, or water running through the property are all rights naturally associated with land ownership. An easement is an additional right, created for the benefit of the dominant tenement and burdening the servient tenement. An easement generally arises or is created in circumstances where the owner of land needs the benefit of a right that does not naturally flow with that land in order to fully utilise the land. A classic example is a right of way. For example, land may be subdivided such that the only way to effectively access it is via a different block of land. In such a situation, the landowner may acquire a separate right of access, exercisable against the different block of land. What is significant about this separate right is that it is enforceable against a block ofland that the holder does not own and, therefore, has no possessory rights in. Despite this, the holder of the easement acquires an incorporeal right which is enforceable against that servient tenement for the benefit of land that is vested in him.

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Profits à prendre 14.3 Not all incorporeal rights in land constitute easements. Some rights that are acquired by a dominant tenement holder against a servient tenement holder are known as profits à prendre (a derivation of the French phrase, ‘right of taking’). A profit àprendre is similar to an easement in that it confers upon the holder a right of entry over the land. However, unlike the easement, the profit entitles the holder to take natural resources from the land such as produce, timber, minerals, petroleum or wild game: Duke of Sutherland vHeathcote (1892) 1 Ch 475. Th e right includes taking a portion of the soil itself: Re Refund of Dues under Timber Regulations [1935] AC 184 at 193. In Paine & Co Ltd v St Neots Gas & Coke Co [1939] 3 All ER 812 at 823, Luxmoore LJ set out the difference between an easement and a profit as follows: An easement differs from a profit à prendre, although both may be classed under the head of servitudes in that the owner of an easement cannot maintain trespass, the only remedies available to him for disturbance being by abatement or by an action for nuisance … for he is asserting a right which of necessity excludes the possibility of possession of the servient tenement, or any part of it …

The distinction was also articulated in Halsbury’s Laws of England, 3rd ed, Vol 12, Butterworths, London, 1955, p 522 at [1129] where the authors conclude that: … an easement only confers a right to utilize the servient tenement in a particular manner, or to prevent the commission of some act on that tenement, whereas a profit à prendre confers a right to take from the servient tenement some part of the soil of that tenement or minerals under it or some of its natural produce, or the animals ferae naturae existing upon it. 849

Hepburn, Samantha. Australian Property Law Cases, Materials and Analysis, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=6221426. Created from vu on 2021-01-28 19:21:17.

14.3

Australian Property Law

Common forms of profits that endure today include the right to quarry a mine to extract minerals (Emerald Quarry Industry Pty Ltd v Commissioner of Highways (1976) 14S ASR486) and the right to take wild animals from the land: Mason v Clarke [1955] AC778. Itwill depend on circumstances and judicial analysis whether the right to take timber from another person’s land constitutes a profit à prendre. The general rule is that the fructus naturales (the property) must form a part of the land and must pass to a holder prior to its severance from the soil although it could remain in the land for further growth. Thus, as Mason J in the High Court noted in Australian Soft wood Forests PtyLtd vAttorney-General (NSW); Ex Rel Corporate Affairs Commission (1981) 148CLR121at131: … if the trees were to be left on the land for the advantage of the purchaser so that he would derive benefit from further growth, then the contract was for the sale of an interest in land. If, on the other hand, the purchaser was to enter and take the timber immediately, he would derive no benefit from the land and the contract was one for the sale of goods. This was the criterion stated by Lord Coleridge CJ in Marshall v Green (1875) 1 CPD, at pp 38–39.

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Ultimately, on the facts Mason J concluded that the right did constitute a profit à prendre because the trees were integrated with the land and therefore could not be regarded as chattels. A further argument raised in the case against the grower having a profit à prendre was that the interest was more in the form of an imperative obligation to remove and cut the trees rather than a right. However, Mason J concluded at [22] that this characterisation did not preclude a profit from arising: All the instances given in the text books and legal dictionaries of profits à prendre are of ‘rights’ to take something off the land of another. I have not been able to discover a case in which an obligation to take something off a person’s land has been considered to be a profit à prendre. But I do not think that this negates the possibility that the grower’s rights amount to an interest in the nature of a profit à prendre. Property in the trees evidently passes to him before planting and their growth in the ground is for his benefit. Th e fact that he has an obligation, rather than a right, to cut and remove them at maturity on notice from the company is not in the circumstances of this case inconsistent with his having an interest in land. As he has an interest in land and a licence to enter the land in order to take possession of the fruits of his interest, what he has is something in the nature of a profit à prendre, if not a profit à prendre in the strict sense.

Th is decision can be contrasted with the conclusions of the New South Wales Supreme Court in Clos Farming Estates Pty Ltd v Easton (2001) 10 BPR 18,845 where the court held that a right to establish a vineyard and then take the produce could not be regarded as a right to take integrated produce from the land. In that case, Bryson J made a distinction between fructus naturales and fructus industriales, noting that the latter, which really involved the production of annual crops, could not be substantially regarded as a ‘part of the land’. On appeal, Santow JA agreed with Bryson J concluding at [58] that the rights that had been conferred upon the holder were highly intrusive and were ‘not just limited rights of entry to take away natural property, but include rights to enter and plant and tend the vines and the right to recover payment for the costs associated with such works and the sale of any produce. Th e rights considered as a whole are far greater than any rights contemplated in the traditional concept of a profit à prendre.’ Profits are created in the same way as easements, either expressly by deed or agreement, or in equity where the formal deed requirements have not been complied with, or by prescription where a person has openly and consistently utilised the right to obtain 850

Hepburn, Samantha. Australian Property Law Cases, Materials and Analysis, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=6221426. Created from vu on 2021-01-28 19:21:17.

Copyright © 2017. LexisNexis Butterworths. All rights reserved.

Easements

14.3

resources from the land in compliance with the statutory period for prescriptive rights under the doctrine of lost modern grant. Profits may be general, entitling a range of holders to access the servient land and take resources, or they may be exclusive, entitling the holder to the sole right to remove resources. Further, like easements, they may be appurtenant to a specifically designated servient tenement or in gross where the dominant tenement is not specified. Profits may be extinguished by express release, agreement, merger or where it is clear that the right is being misused. For an excellent discussion on the nature of profits, see: G Gadsden, Th e Law of Commons, Sweet & Maxwell, London, 1988, p 12 and more generally Jackson, The Law of Easements and Profits, Butterworths, London, 1978. In Ellison v Vukicevic (1986) 7 NSWLR 104, the New South Wales Supreme Court concluded that a profit à prendre is a ‘peculiar kind of interest’ and one in which ‘the familiar rules’ relevant to property may not apply. Young J noted that the profit carries fundamentally different assumptions to those applicable to corporeal interests. His Honour noted that the principle that when selling a corporeal interest in land, unless the contrary is stated, the entire interest is deemed to pass, does not apply to profits. Such an assumption is inappropriate in the context of a profit because the grantor, by definition, is only parting with a part of his or her rights over the land. Carbon sequestration rights have been articulated in some states as profit à prendre rights. For example, the Conveyancing Act 1919 (NSW) specifically deems forestry rights, which include the category of carbon rights, to constitute profits à prendre: s88AB(1). In Queensland, the rights of a party to the natural resource product, arising pursuant to a natural resource agreement, are deemed by the Forestry Act 1959 (Qld), s 61J(5), to constitute a profit à prendre and registrable property within the application of Division4B of the Land Title Act 1994 (Qld). In Tasmania, carbon rights are deemed to constitute profit à prendre rights under the Forestry Rights Registration Act 1990 (Tas)s 5(3). Th e status of profits within the Torrens system depends upon the particular state. For example, the Real Property Act 1900 (NSW) s 42(1)(b) makes it clear that all registered proprietors take subject to the ‘omission or misdescription … of any profit à prendre …created or existing upon the land’. What this means is that where a profit has not been protected by caveat, it may gain the protection afforded to paramount interests only in circumstances where it can be established that it has been omitted or misdescribed. Th is will arise where a profit has been omitted from a title during the process of having that title converted from general law to Torrens title land. Alternatively, a profit may be ‘omitted or misdescribed’ where it has been created over pre-existing Torrens land in accordance with all the formal creation requirements, however the profit has subsequently been left off title: James v Registrar-General (1967) 69 SR (NSW) 361. Prescriptive profits would not gain this protection unless the right has been formalised and the documents lodged with the Registrar. However, it is arguable that neither prescriptive profi ts nor prescriptive easements are enforceable against registered proprietors. In Williams v State Transit Authority (2004) 60 NSWLR 286 at[140], Mason P noted that there is a ‘relatively unbroken line of authority in this State precluding the creation of easements aft er land comes under the Act except by way of registrable instrument’ and that there were ‘obvious reasons why a court should be cautious about any change to settled law in relation to real property’. The same rationale can be applied to prescriptive profits. (See further discussion in Chapter 11.) 851

Hepburn, Samantha. Australian Property Law Cases, Materials and Analysis, LexisNexis Butterworths, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/vu/detail.action?docID=6221426. Created from vu on 2021-01-28 19:21:17.

14.4

Australian Property Law

Rentcharge 14.4 Rentcharges have their origin in feudal England where the practice of ‘reserving’ a rent over land was common. Rentcharges are still created in England; however, they are unusual in Australia. A rentcharge is a payment, made annually or periodically, by a landowner. Theholder of the charge retains an incorporeal interest in the land to which the charge relates but it does not confer upon the holder any form of corporeal estate in the land because there is no tenurial relationship involved. It is, therefore, an incorporeal hereditament that burdens one piece of land without providing a specific benefit to another piece of land. In this sense, a rentcharge is a right that exists in gross and that does not relate to any specific land that the holder might have. In National Executors and Trustees Co of Tasmania v Edwards [1957] Tas SR 182, Burbury CJ concluded that fluctuation is not fatal to a rentcharge and a charge that conferred a royalty on the value of all minerals taken from the land did constitute a valid rentcharge even though its value might vary according to the level and nature of the mining undertaken. See also Bromley v Tryon [1952] AC 265.

Essential Elements of an Easement 14.5 There are four primary characteristics of an easement as set out by G CCheshire in The Modern Law of Real Property, 7th ed, Butterworths, London, 1954, and endorsed by Lord Evershed MR in Re Ellenborough Park [1956] Ch 131. Th ese characteristics are: i. there must be a dominant and a servient tenement; ii. the easement must accommodate the dominant tenement; iii. the dominant and servient tenement must not be owned and possessed by the same person; and iv. the easement right must be capable of forming the subject matter of a grant.

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Dominant and servient tenement 14.6 An easement is a right that is appurtenant to land and therefore it must provide a benefit to a dominant tenement and impose a burden over a separate servient tenement. Where there is no land that benefits from an easement the easement is known as an easement in gross. Easements in gross can be created by statute (usually for the benefit of local councils); however, they do not exist under common law in Australia. It is not possible for an easement to be created over land that is owned by the same person. In such a situation, because the owner has title and possession over both pieces of land there is no need to create an additional easement right. Thus, in interpreting the scope and nature of an easement, it is necessary to wait until the dominant and servient tenement are owned and possessed by different persons. As noted by Young J in Finlayson v Campbell [1997] NSWSC 1050 in the context of the con...