However, easements cannot normally be consolidated (nowadays registered under
Torrens system - issue of being able to register interest within the Torrens system):
Re
Eddowes
[1991] 2 Qd 381.
Dominant and servient tenements must be different people (NSWreforms have
changed this)
At common law, an easement is extinguished where the dominant and servient
tenement is held by the same person (no benefit being conferred on another party -
unification of interest):
Moody v Steggles
(1879) 12 Ch D 261.
^ if the lessor and lessee are the same person - you have no lease
69
However, this is no longer the case in NSW. Subdivisions will create all
easements referred to in it and easements will not be extinguished if the dominant and
servient tenement is held by the same person:
Conveyancing Act, s 88B.
It is possible to create easements over several parcels of land, even if those
parcels are owned by the same person in Torrens title:
RPA, s 46A.
An easement will not be extinguished if the dominant and servient tenements
come into common ownership and possession:
RPA, s 47(7).
The right must be capable of forming the subject matter of a grant
There must be a capable grantee and a capable grantor (capable in the sense
that they can form a valid contract):
Re Ellenborough Park
[1956] 1 Ch.
The right must be sufficiently definite. Rights which are broadly expressed,
for example, a right “to a view” or for “protection from the weather” or “to receive a
television signal,” are all too vague.
The rights granted must be capable of being granted as an easement. They
should not, for example amount to exclusive use of the servient tenement (the person
who is burdened by the servient tenement also has the right to use the easement - not be
fair or enforceable for the owner of the dominant tenement to have exclusive usage) or to
a right unknown at law (if the subject matter of the grant is unknown - the court cannot
enforce the particular interest of the owner of the dominant tenement - right must be
enforceable - court cannot control weather for example):
Copeland v Greenhalf
[1952] 1
Ch 488.
Rights that are NOT
protected by easements include:
A right to privacy
:
Victoria Park Racing and Recreation Grounds v Taylor
(
1937) 58 CLR 479.
Neighbour broadcasted races that occurred next to Neighbour's
property - lived next to horse racing ground
Victoria Park wanted them to stop broadcasting races
HCA held neighbour was free to continue broadcasting as there is no
proprietary right to privacy. Moreover there is no proprietary interest to a spectacle.
A right to receive a television signal
:
Hunter v Canary Wharf Ltd
[1997] AC
655.
Too vague - difficult for the court to enforce
A right to a view
:
Re Aldred’s Case
(1610) 9 Co Rep 57b.
A right to protection from the weather
:
Phipps v Pears
[1965] 1 QB 76.
