Commonwealth v Registrar of Titles

The Commonwealth sought to compel the Registrar of Titles for Victoria to register a right to uninterrupted access of light and air over an adjoining strip of land, acquired under the *Lands Acquisition Act 1906*. The Registrar had refused to register this right, arguing it was not an existing easement but a right to a future easement, and that his office's practice was to refuse such registrations. The Commonwealth appealed from the decision of the Supreme Court of Victoria, which had discharged an order nisi for mandamus.

The High Court was required to determine whether the right to uninterrupted access of light and air to future buildings, acquired by the Commonwealth, constituted a registrable easement under Victorian land law, and consequently, whether the Registrar of Titles was bound to register it. Specifically, the court had to consider the scope of the definition of "land" under the *Lands Acquisition Act 1906*, the nature of easements, and the Registrar's obligations under section 20 of that Act when dealing with notifications of land acquisition.

The Court held that the right acquired by the Commonwealth was an easement at common law, capable of being registered under sections 68 and 73 of the *Transfer of Land Act 1915* (Vict.). Griffith C.J. reasoned that the right, though relating to future buildings, was a diminution of the servient owner's dominion and an addition to the Commonwealth's property, akin to existing easements. He further noted that the *Lands Acquisition Act 1906* mandated the Registrar to treat the acquisition notification as a transfer and register it accordingly, irrespective of whether the right would be considered a registrable easement under state law alone. Gavan Duffy and Rich JJ. concurred, finding no principle or authority preventing such a right from constituting an easement, and that the abandonment of the servient owner's right to obstruct light and air could be total or partial, with the acquired right being sufficiently defined.

The appeal was allowed, the order of the Supreme Court discharged, and an order for mandamus absolute was made, compelling the Registrar of Titles to register the acquired right to light and air.