13.1   Introduction

An easement is an intangible right over land, traditionally classified as a form of real property. Easements are also known as ‘incorporeal hereditaments’. Incorporeal hereditament is an old Roman term, used to describe rights which do not have any substantial existence but which are nevertheless proprietary because they relate to and are enforceable over real property and are capable of being inherited. Easements are enforceable through real actions; hence, despite their incorporeal nature, they are considered to constitute a form of real property, because the owner of land which is subject to the benefit of an easement is entitled to enforce the right which is the subject matter of the easement against the owner of the burdened land and this right is enforceable against the rest of the world. Easements come in a variety of forms and cover an increasing range of rights. One of the primary and defining characteristics of the easement is that it does not constitute a possessory right; the holder of an easement may exercise certain rights over the land, but those rights are not possessory. Where the right to take possession of land is conferred, the right is properly described as a lease rather than an easement.

Easements have been recognised since medieval times, as the terminology in this area of law suggests. However, much of the legal development did not occur until necessitated by the major social developments and upheavals of the 18th and 19th centuries.1 With increasing population, higher density living and an emerging diversity of land usage, it became necessary to introduce specific legal principles for the creation and enforcement of additional rights over land. The proper elaboration of such principles was vitally important in order to cater for the new economic needs of society; easements helped sustain and encourage a systemised and progressive development of residential and industrial land usage. Easements were an important part of the industrial revolution because of the diversity of rights they could represent and because of the status of the right. Unlike its close relative, the restrictive covenant, the easement is a proprietary creature; once created, it will confer an enduring and enforceable right upon the holder against the rest of the world.

Basically, an easement constitutes an additional right which attaches to one piece of land in order to confer a specific privilege or additional benefit over another piece of land. This privilege is suffered by the ‘servient tenement’ holder and enjoyed by the ‘dominant tenement’ holder. The main function of the easement is to provide the dominant tenement holder with a right which is exercisable over the servient tenement which is important and necessary for the proper enjoyment of the dominant tenement, but which does not amount to an automatic, natural right enjoyed by all land owners. Two classic forms of easement are the right of way and the right of support. The right of way entitles the holder to access her land via a pathway or entrance on the servient tenement. The right of support entitles the holder to prevent the owner of the servient tenement from removing a supporting wall or fence. There are many other rights which may form the subject matter of an easement, although some rights are so vague, indistinct and obtuse that they are incapable of doing so. In order to constitute an easement, the right has not only to provide some additional privilege to the dominant tenement holder, it must confer a benefit which is properly identifiable and able to be enforced against the servient tenement. The type of rights which easements represent inevitably vary with the changing social milieu. As noted by Lord St Leonards in 1852, in Dyce v Hay 1 Macq HL, p 312: ‘The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind.’

13.2   Proprietary nature of easements

13.2.1   Easements distinguished from other similar rights

A ‘natural’ right is a right which naturally flows with, or is incidental to, the ownership of an estate or interest in the land; it is a right which is an automatic extension of an estate in land and therefore does not need to be additionally created. Classic examples of natural rights include the right to the natural flow of water from an established source (Swindon Waterworks Co Ltd v Wilts and Berks Canal Navigation Co (1875) LR 7 HL 697) and the right to use and enjoy the land, the right to shade under a tree on the land and the right to produce grown on the land. There is no need to create additional easement rights in circumstances where such rights are already naturally conferred.

Whilst, conceptually, easements are similar to restrictive covenants, there is a pivotal difference between the two. Restrictive covenants are contractual, and therefore are primarily only enforceable in personam, whereas an easement confers an in rem right which is enforceable against the rest of the world. Being proprietary in nature, easements do not need to be annexed to the land or to satisfy particular equitable tests in order to run with the land: all that needs to be established is that the requirements for a valid easement exist and that the easement has been properly created.

Furthermore, easements generally confer different types of rights from those applicable to restrictive covenants. In order to be enforceable in equity, a covenant must be restrictive, whereas an easement may be positive or negative in nature, the primary requirement being that it must accommodate the dominant tenement and be properly defined. Easements tend to confer rights specifically related to the usage of the dominant tenement, whereas restrictive covenants tend to impose prohibitions restricting the usage of the burdened land but leaving the usage of the benefited land unaffected.

An easement also differs from a profit à prendre. A profit à prendre is similar to an easement in that it confers a right, but the right is to take some part of the soil, minerals or natural produce upon the land (Manning v Wasdale (1836)5 Ad & E 758). A profit is essentially a right to take tangible produce from the land itself rather than a right of usage. Unlike easements, a profit à prendre may exist privately or be mutually shared amongst a range of holders. Furthermore, a profit à prendre may be imposed over specific land for the benefit of a dominant tenement and, in such case, is referred to as an ‘appurtenant profit’ or, alternatively, it may exist as a ‘profit in gross’ where it provides no identifiable benefit for a dominant tenement. Profits may be expressly or impliedly created under common law or equity, as is the case with easements. However, the principles relating to implied easements of necessity would not apply to the profits because the profit is regarded as an extraneous right and not one of exigency.

A profit à prendre cannot exist unless it directly relates to the character of the land itself or the flora, fauna or produce of the land, the profit will be invalid unless it refers to this ‘produce’ of the land. Classic examples of profits include the right to chop down firewood and the right to gather fruit or vegetables from the land. The right must involve the taking of specific produce from the land rather than a right to produce upon the land because the profit is essentially a right to take from the land, not a right to occupy and use the land (Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426).

Easements differ from licences because a licence is non-proprietary and merely confers permission to enter land; a licence is not a proprietary right to actually use the land. Furthermore, licences may be revoked, where the circumstances require it, whereas, as an easement constitutes a proprietary interest, once properly created, it cannot be unilaterally revoked.

Finally, an easement differs from a lease because, as noted above, the defining feature of an incorporeal hereditament is that it does not confer any right to possession. A lease constitutes a non-freehold estate which will exist for a specified duration and which confers exclusive possession upon the lessee for that period of time. An easement constitutes a right of usage over the land, which may exist indefinitely but which cannot amount to a right to confer exclusive possession. An easement is an ‘additional’ right over land— the right to possess land is a component of the freehold estate. Any easement which attempted to confer a right to exclusive possession may either be struck down or, in substance, it may be read as creating a lease.

13.2.2   Positive and negative easements

Easement rights may be positive or negative in nature. Positive easements entitle the dominant tenement holder to carry out certain activities or to conduct a particular usage over the servient tenement. Examples of positive easements include rights of way, a right to use and enjoy parklands, and a right to enter the servient land to install and maintain sewerage pipes. On the other hand, negative easements are easements which, in substance, have the effect of circumscribing the behaviour of the servient tenement holder. A negative easement constitutes a restriction on the proprietary rights of the servient tenement holder. A classic example is the right of support, others include a right to the flow of air through a defined aperture, and the right of the dominant tenement holder to receive light. Whilst, in form, a negative easement may appear to confer positive rights upon the dominant tenement holder, in substance the right is actually negative as it restricts the activities of the servient tenement holder. For example, a right to support from a building effectively precludes the servient tenement holder from demolishing the building or in any way reconstructing the building so as to leave the adjoining building unsupported.

One of the criticisms that is often levelled at negative easements is that they interfere with the fundamental proprietary right of the servient tenement holder to use and enjoy the land. Where this interference is too extensive, courts have held, for policy reasons, that the easement should not be enforced. The classic decision on this is Phipps v Pears [1965] 1 QB 76. On the facts of that case, the owner of two adjoining houses decided to demolish one of them and build a new house which directly supported the adjoining house and prevented one side of the wall from having to be weatherproofed. Subsequently, the properties were conveyed to different purchasers. The purchaser of one of the properties proceeded to demolish his property in accordance with a directive from the local council. The effect of this demolition was to leave the adjoining wall, which was not weatherproofed, unsupported and vulnerable to the elements. The plaintiff was the purchaser of the adjoining house, and as the wall suffered damage due to exposure, he argued that he held an implied easement entitling him to protection from the weather and the neighbouring defendant had breached this easement.

The Court of Appeal concluded that no such easement existed. Lord Denning felt that a right to protection from the weather was not an easement which was known by the law and, furthermore, was not one which the courts were prepared to protect. His Lordship felt that such a right would, in substance, amount to a negative easement, severely restricting the right of the servient tenement holder to use and enjoy the land as he or she saw fit. According to his Lordship, it would be unfair to enforce such rights because of the negative effect they would have upon residential development, in particular, the right to redevelop and redesign property. Furthermore, on the facts, it would have been unfair to hold the defendant liable to a breach of an implied covenant when the demolition itself was a result of a governmental directive. Hence, it would seem that the enforceability of any new right which amounts to a negative easement will be approached with caution by the courts.

The judgment of Lord Denning in Phipps may be criticised on the ground that it overlooks the fact that restrictions can be imposed upon landowners in the form of restrictive covenants. Whilst this may be true, it is important to remember that the prohibitions imposed by restrictive covenants are quite different in form and scope to negative easements. A restrictive covenant is a contractual prohibition, and may only be enforceable against a successor in title to the covenantor where the successor in title takes with notice of its existence and the restriction identifies and benefits particular land. Further, unlike easements, restrictive covenants cannot be implied, they must be expressly created. A negative easement, on the other hand, where upheld, creates a proprietary right which may endure, despite the fact that the servient tenement holder has no notice of its existence. Whilst the negative easement must identify and benefit the dominant tenement, it is enforceable as an incorporeal hereditament, not as a contractual right. Hence, it may be argued that courts are right to be circumspect when examining the enforceability of new forms of negative easements, because the consequences can be quite deleterious upon the servient tenement holder. This issue may take on an increasing significance with the acceleration of high density, inner city living where basic rights such as plants, trees, garden and airspace are becoming a rarity.

13.3   Requirements for a valid easement

13.3.1   Dominant and servient tenement

Before a valid easement can be recognised, it must be established that it attaches to a servient tenement for the benefit of a dominant tenement. The servient tenement is the land which is burdened by the easement. The dominant tenement is the land which is benefited by the easement. The dominant tenement does not, however, have to be land: it is possible for an easement to exist which benefits another easement. Hence the rule is not restricted to tangible forms of property (Hanbury v Jenkins [1901] 2 Ch 401).

If it is established that there is no dominant tenement, the easement is known as an ‘easement in gross’. The common law will not enforce an easement in gross because the courts have held that, where there is no benefited land, the right is no different from a personal licence. An easement is an intangible right which exists for the benefit of land and, if the land does not exist, the right cannot be properly described as proprietary. As noted by Cresswell J in Ackroyd v Smith (1850) 10 CB 164, pp 187–88:

…a right unconnected with the enjoyment or occupation of the land cannot be annexed as an incident to it; nor can a way appendant to a house or land be granted away, or made in gross; for, no one can have such a way but he who has the land to which it is appendant. If a way be granted in gross, it is personal only, and cannot be assigned… It is not in the power of a vendor to create rights not connected with the use or enjoyment of the land, and annex them to it.

There has, however, been some debate concerning the validity of easements in gross. It has been argued that if it is possible to create a profit à prendre in gross and for certain statutory bodies to create easements in gross, the common law should not adopt such a prohibitive stance.2 Certainly, in some circumstances, it may be unfair to refuse the enforcement of a right which provides a clear ‘land benefit’ to a person simply because the benefit does not seem to attach to any particular land. For example, it may be unjust and too pedantic to refuse to recognise that a right to land an aircraft over suitable land may constitute an easement simply because it is the aircraft and the safety of the passengers that will benefit rather than any identifiable dominant tenement. On the other hand, if the right is, in substance, personal in nature, it may be better to create and enforce it as a personal licence rather than artificially extend the category of easements. Many new easements confer mutual personal and proprietary benefits but are classified as ‘easements’ because of the greater advantages such a classification confers (Evanel Pty Ltd v Nelson [1995] NSW Conv R 55–759).

There are a number of statutes entitling governmental bodies to enforce easements in gross. In Victoria, s 187A of the Local Government Act 1989 entitles a council to enforce an easement in gross.3 The section reads as follows:

If any right in the nature of an easement or purporting to be an easement or an irrevocable licence is or has been acquired by a council whether before or after the commencement of the Local Government Act 1958, the right is deemed for all purposes to be and to have been an easement even if there is no land vested in the council which is benefited by the right.

Whilst a dominant tenement must exist before an easement will be enforceable under common law, it does not need to be expressly defined in the easement, provided it can be properly inferred from all of the circumstances.4 As noted by Upjohn LJ in Johnstone v Holdway [1963] 1 QB 601 (p 612):

In our judgment, it is a question of construction of the deed creating a right of way as to what is the dominant tenement for the benefit of which the right of way is granted and to which the right of way is appurtenant. In construing the deed, the court is entitled to have evidence of all material facts at the time of the execution of the deed, so as to place the court in the situation of the parties.

This principle has now been endorsed by statute with respect to the creation of rights of way.5 Section 197 of the Property Law Act 1958 (Vic) sets out:

Whenever in any conveyance of land or in any deed of grant a right to use any road or way has been granted to the purchaser or to the grantee his heirs and assigns, such right, although it be not granted into, out of and from the land conveyed to the purchaser, or described in the deed as owned by the grantee, shall nevertheless be deemed to be a right appurtenant to the land conveyed, or owned, as the case may be, and every part thereof and not a right in gross.

13.3.2   The easement must accommodate the dominant tenement

An easement will only be enforceable at law where it can be proven that the easement operates to provide a benefit to the dominant tenement. Where the benefit that is provided is personal in nature or does not sufficiently attach to the dominant tenement, the right will be unenforceable as an easement, because the connection to the land will be insufficient. As the basis of the easement is an incorporeal right over land, it is not within the power of a grantee to create an easement conferring rights not related to the land. In such a situation, the right cannot be truly described as an easement. This has been clearly established in the classic authority, Ackroyd v Smith (1850) 10 CB 164. In that case, it was held that an attempt to confer rights upon a party which are unconnected with the use and enjoyment of the land will merely operate as a licence or a covenant on the part of the grantors and will create no proprietary right in the form of an easement.

An easement can only accommodate the dominant tenement where there is a sufficient degree of proximity between the dominant and servient tenement. If the tenements are a long distance apart, it will be difficult to establish that the dominant tenement has received a benefit from land. This does not mean that the dominant and servient tenements must be physically contiguous; they must, however, be sufficiently proximate so that the right attaching to the burdened land provides an active ascertainable benefit to the dominant tenement (Todrick v Western National Omnibus Co Ltd [1934] Ch 561).

An easement can only accommodate the dominant tenement where the right relates to the use and enjoyment of the land and not the personal enjoyment of the owner. This is clearly revealed in the decision of Hill v Tupper (1863) 2 H & C 121; 159 ER 51. On the facts of that case, the right conferred was a right to use and enjoy boats on a canal which abutted the dominant tenement. The court held that such a right was primarily associated with personal pleasure and, as such, was unconnected with the physical enjoyment of the land itself.

It is not necessary for the owner of the dominant tenement to acquire a benefit from the easement alone; where a right benefits the dominant tenement as well as persons unconnected with the ownership of the land, the right may still constitute an easement (Re Ellenborough Park [1956] 1 Ch 131). Furthermore, it will be sufficient for the right to accommodate a business conducted on the land, as this is perceived to be a right which actually provides a benefit to the dominant tenement (Copeland v Greenhalf [1952] 1 Ch 488).

A right may accommodate the dominant tenement despite the fact that it only provides a benefit to a small portion of the land. Hence, for example, a right of way which benefits only a small portion of the overall dominant tenement can still constitute an easement. As noted by Hood J in Registrar of Titles ex p Waddington [1917] VLR 603 (p 606): ‘It is difficult to see what benefit can be derived in the enjoyment of a bit of land one link square from a right of carriageway over an adjacent street. But such a benefit is not impossible.’

This has been logically extended to apply to subdivided land. In Gallagher v Rainbow (1994) 68 ALJR 512, the court held that there will be a presumption that an easement which benefits the whole dominant tenement will also benefit each of its subdivided parts unless the easement, upon a proper construction, was only intended to benefit the dominant tenement in its original entirety.

13.3.3   Separate ownership of the dominant and servient tenements

Where one person owns and possesses both the dominant and servient tenements, there can be no easement; there is no need to confer additional proprietary rights over land already owned; an owner can, for example, exercise a right of way over land which she herself owns. It is nonsensical to create an easement over your own land—it is a superfluous right. As noted by Lord Esher MR in Metropolitan Railway Co v Fowler [1892] 1 QB 165, ‘You cannot have an easement over your own land’.

Where one person owns both tenements but does not possess both, an easement may arise. Hence, where the owner of the servient tenement leases out the dominant tenement, the dominant tenement holder may acquire easement rights over the servient tenement for the duration of the lease. Upon the expiration of the lease, these rights will expire. There are some statutory provisions dealing with subdivision and strata title ownership in this respect. In New South Wales, an easement may be created where a plan of subdivision is registered, despite the fact that ownership to both tenements is vested in one person (s 88B(3) of the Conveyancing Act 1919 (NSW)).6 In Tasmania, implied or statutory easements created over strata title flats will not be destroyed where ownership to both tenements is vested in one person; such easements shall be suspended for the duration of mutual ownership and may be revived once mutual ownership is extinguished (s 75ZB of the Conveyancing and Law of Property Act 1884 (Tas)).

13.3.4   The easement must be capable of forming the subject matter of a grant

A right which is vague, obscure and indistinct may not constitute a valid easement because such rights do not, in substance, confer a definitive benefit upon the dominant tenement. Particular types of rights have been held to offend this requirement. Rights of ius spatiandi, that is, rights conferring the privilege of wandering over land, have traditionally been held to be incapable of forming the subject matter of an easement. Such rights are usually distinguished from rights to use and enjoy garden land and facilities. In Re Ellenborough Park [1956] 1 Ch 131, it was held that the right to enjoy the garden in the square known as Ellenborough Park, which was granted to all the tenants in common owning land around the park, constituted a valid easement because a right to use and enjoy the garden was a valid form of recreation over land and should be contrasted from a mere right to roam and wonder over the land. This decision was subsequently confirmed in Riley v Pentilla [1957] VR 547.

In Evanel Pty Ltd v Nelson [1995] NSW Conv R 55–759, the court held that a right, described as a ‘right of footway’ over the garden, was capable of forming the subject matter of an easement. This was so despite the fact that the right was limited to a specific land and was described in restrictive terms as a right of footway.

As with rights of ius spatiandi, rights of pure recreation had traditionally been held to be incapable of forming the subject matter of an easement (Mounsey v Ismay (1865) 3 H & C 486; 159 ER 621). The rationale seems to be that such rights are flimsy and insubstantial and provide little definable benefit to the dominant tenement. Nevertheless, as society changes and greater emphasis and importance are placed upon recreational facilities, the basis of this rule is being reassessed. Certainly, in Evanel Pty Ltd v Nelson [1995] NSW Conv R 55–759, the court emphasised the fact that a right to access garden facilities, whether by way of a footway or otherwise, is very closely linked to general rights of recreation; such rights can confer an important benefit upon land, particularly in high density areas and housing development estates where shared recreational facilities are regarded as an essential component of land ownership.

In City Developments Pty Ltd v Registrar General of Northern Territory [2000] 135 NTR, sections of land adjoining a natural lake and foreshore land received grants of easement, which were registered. Conditions of the grants of easement included that covenantee was authorised by the grantee to enter upon and use the land burdened by the easement for private recreational purposes and, inter alia, have free and uninterrupted passage across and use of the grantor’s land, and the right to leave boats on the lake. The claimants argued the easement did not benefit the land, but individuals; and that the term ‘private recreational purposes’ was too vague to form the subject matter of a grant of easement. The Supreme Court of the Northern Territory upheld the validity of the right as an easement and held that there is no reason in law why an easement cannot be granted for recreational purposes—which means the action of recreating (oneself or another) or fact of being recreated, by some pleasant occupation, pastime or amusement. The term ‘recreational purpose’ is to be construed sensibly and reasonably in the context of rural lakeside recreation and can therefore include walking across and around the lands surrounding the lake, swimming and boating and recreational activities such as photography, birdwatching and other passive, recreational pursuits. The court noted that jus spatiandi— or wandering at large—is simply one method of exercising a right of enjoyment over a lakeside garden and the existence of this method should not automatically mean that a recreational easement is incapable of forming the subject matter of a grant.

13.4   Creating easements

13.4.1   Legal and equitable easements

An easement may be expressly created at law or in equity. For a legal easement to exist, s 52(1) of the Property Law Act 1958 (Vic) requires the easement to be set out in the form of a deed.7 Where the easement relates to Torrens title land, s 40(2) of the Transfer of Land Act 1958 (Vic) sets out that the registration of the easement will deem the instrument to take effect as if it were a deed, even if it has not been created pursuant to a deed.8

Where an easement is not created pursuant to a deed, or remains unregistered, it may be enforceable in the equity jurisdiction in a number of situations. Where a valid and enforceable agreement to create an easement is entered into by two parties, equity may enforce the easement where common law would not because of a failure to comply with the statutory formalities. Hence, if a vendor of land agrees as a term under a contract of sale to confer a right of way over his land to the purchaser of adjoining land, and the contract is valid and enforceable, the purchaser may enforce the easement in equity (Walsh v Lonsdale (1882) 21 Ch D 9). It would need to be established that the contract was in writing in order to satisfy s 126 of the Instruments Act 1958 (Vic) which sets out that all contracts for the sale or other disposition of interests in land must be in writing, signed by the person to be charged, or a lawfully authorised person.9

Alternatively, easements may be enforceable in equity on the basis of proprietary estoppel or part performance. In a situation where the owner of a servient tenement has agreed with the owner of a dominant tenement to grant an easement and, in accordance with that agreement, the dominant tenement holder has exercised rights over the servient land with the approval of the servient tenement owner, the easement may be enforceable in equity despite the fact that it does not constitute a deed or, if Torrens title, has not been registered, so as to confer legal title. Similarly, if the owner of the servient tenement has encouraged the owner of the dominant tenement holder to believe that an easement has been granted, the dominant tenement holder may bring an action claiming the servient tenement is estopped from denying the existence of the easement on the basis of the principles set out in Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.

The creation of an easement by estoppel was evidenced in Dabbs v Seaman (1925) 36 CLR 538. On the facts of that case, Seaman purchased land which he subsequently subdivided into two one acre lots and sold the eastern block to Smith, and, in the conveyance, described the land as bounded on one side by a 20 foot lane which formed another part of Seaman’s land. The certificate of title received by Smith showed that his land abutted the lane. Seaman subsequently purchased a strip of land along another road which provided alternative access to the northern portion of his land, so that the land reserve in the 20 foot lane was no longer necessary. Nevertheless, the land was too narrow to sell; therefore, Seaman purchased a larger block of land to the west of the strip with the intention of consolidating both blocks to create a larger block for sale. Meanwhile, Smith died and devised the land to D, and the certificate of title referred to a 20 foot lane without any mention of an easement over the lane. D tried to purchase the lane from Seaman but was unsuccessful. Seaman then applied to consolidate the two titles and for the deletion of the reference to the lane on D’s title. D would not agree to this. Seaman sought a declaration that no right of way over the land existed in favour of D, and therefore that he should be able to consolidate both titles. D appealed to the High Court, and the appeal was upheld. One of the grounds for upholding the appeal was that Seaman was estopped from denying the existence of the easement which he had helped to construct when selling the land to Smith. The court noted that where a person holds good title pursuant to an estoppel claim, he or she can give good title to a subsequent purchaser even where the purchaser takes with knowledge of the circumstances raising the estoppel (Sarat Chunder Dey v Chunder Laha (1892) LR 19). See, also, 13.4.4 and 13.6 on Dabbs v Seaman.

13.4.2   Express grants