High Court of Australia Walsh J. Anthony v Commonwealth Judgment reserved. Jan. 26. Walsh J. 1. The issues in the action. This is an action to determine the amount of compensation payable to the plaintiff in respect of the compulsory acquisition, in accordance with the Lands Acquisition Act 1955-1966 Cth, of certain land, having an area of a little over 4 acres, situated about 14½ miles from the Post Office at Darwin, on the route of the Stuart Highway. The notice of acquisition was published on 22nd April, 1971. It stated that the public purpose for which the land was acquired was "roadway realignment". The land was part of the land comprised in certificate of title, vol. 2, folio 79. The plaintiff is the executrix of the will of Maxwell McMillan, who was one of four registered proprietors who acquired the land as part of a much larger area in 1942. At the time of his death in 1967 Maxwell McMillan had become; as between himself and the other registered proprietors, the sole owner of the subject land. It is not in dispute between the parties to this action that the plaintiff was at the time of the acquisition and is solely entitled to the land. The plaintiff's claim is for $6,604, as the value of the land at the relevant date. This claim is based on the evidence of Mr J. J. Doyle, a valuer, who was called as a witness on behalf of the plaintiff. The disputes between the parties are confined to disputes as to the effect which should be given in valuing the land to the presence on it of several improvements or works. At the date of acquisition, it had on it, under it or above it (1) a section of the Stuart Highway; (2) a section of a water pipeline of 12 inch diameter and its supports; (3) a section of a water pipeline of 15 inch diameter and its supports; (4) a section of an electrical power line; and (5) a section of a telephone line. There is no dispute as to the value which should be placed on the land if none of those works existed. Mr Doyle estimated this at $332 and that figure is not challenged. The claim of the plaintiff is that the land must be valued with all those improvements or structures and that the method to be adopted is to add to the unimproved value the several amounts which it would have cost at the date of acquisition to establish the improvements or structures, less a deduction for obsolescence or depreciation. The defendant contends that, for various reasons, none of the improvements or structures ought to be taken into account in making a valuation for the purpose of fixing the amount of compensation. Alternatively, it contends that any additional value to be attributed to the land because of any improvement that ought to be taken into account is not to be measured in the manner adopted by Mr Doyle, but by reference to other factors and considerations to which its expert witness, Mr McDonald, referred. The amount in dispute between the parties is relatively small. Some of the particular items are trivial in comparison with the time expended in calling evidence and making submissions about them. Mr Doyle's allowance for the power line was $235 and for the telephone line it was $200. But it was said that the questions raised in the action are of great importance and are likely to be raised in other cases. However, I do not intend to attempt to deal fully with some of the many questions of law that were debated, as all of them do not need, in my opinion, to be decided in this case. As to the facts, there is little that is not common ground. A helpful statement of facts was prepared by the parties and put into evidence (ex. 14). I have been asked by the parties to treat the facts therein stated as agreed facts for the purpose of the action, subject to any qualifications which I may consider necessary in the light of the evidence, both oral and documentary. It is desirable now to discuss separately each of the improvements or structures on the land and to determine whether it should or should not have been taken into account in fixing the value of the land. 2. The "works" on the land. (A) The Stuart Highway. About 1936 work was begun on locating a route for a new road between Darwin and Adelaide River and in 1937 a route was cleared to a width of about thirty feet. This was done by servants of the defendant. It seems clear from the evidence that the road which was later constructed followed fairly closely that same route. It is probable that the track as then cleared crossed the land which is the subject of this action. At that time little work was done except for the clearing of the ground and some levelling and grading of it. There is evidence which I accept that for various reasons vehicles using this track deviated from it, so that the track as used was not at all places identical with the track as cleared. But I think that this fact is irrelevant to any question that I have to decide. The argument for the defendant that the road was dedicated as a public road does not depend, I think, upon user by the public during this early period. If the argument cannot succeed on later user after the war, I do not think it gains strength by reason of this early user. On the other hand, certain arguments by which the plaintiff sought to rebut any suggestion that there was a voluntary acquiescence in the use by the public of the road were not dependent, in my opinion, upon any definite findings as to the course taken by the road in this early period. In any event, as will appear later, the conclusion that I have reached in relation to the road is one which does not require any decision as to the user of the road in the period prior to the construction work which took place in the war years and which established definitely the course of the road. It is a conclusion which makes it unnecessary for me to decide whether the facts were such that at common law a dedication of the road to the public would have been found to have occurred. In the statement of facts, it is said that at the beginning of 1941 the road consisted of "a gravelled pavement or gravel earth formation 18 to 20 feet wide". On the oral evidence it may be doubted that at this time much gravel had been put down on the track, but this is of no consequence. In 1941 a gravelled roadway was constructed. This was done by the Main Roads Board of New South Wales. At this time the cleared area was widened, the formed area was also widened and drains were provided on each side of it and a gravel pavement 22 feet wide was put down. The cost of the work was borne by the defendant. In 1942 and 1943 this section of the road was sealed with bitumen and was otherwise improved. Subsequently, it was maintained at the cost of the defendant. There was a great deal of evidence about the traffic which used the road. It showed that after 1941 and up to the end of the war the road was used very extensively for defence purposes, but there was very little civilian traffic. Most civilians had been required to leave the area. After the war the road was used freely by members of the general public. The amount of traffic increased as time went by. No obstruction was placed on the road by the predecessors in title of the plaintiff and no protest was made, at least earlier than about 1957, about the road being on their land. It is plain that in this postwar period members of the public regarded themselves as fully entitled to use the road and did use it and no limitations were in fact placed upon their use of it, either by the owners of the subject land or by anybody else. At this point it is necessary to refer to certain ordinances. The Military Roads Ordinance 1942 NT defined the expression "military road" as including the Stuart Highway, which was itself defined as the main north-south motor road from Darwin to Alice Springs. The ordinance stated that it was not to apply to any member of the defence force of the Commonwealth when driving or in charge of any military vehicle or to any person carrying out the instructions of a commissioned military officer or to police officers or to any military vehicle, but it was to apply to persons in the public service of the Crown. The Administrator was empowered to grant exemption from the application of the ordinance under certain conditions. He was empowered, also, to make regulations providing for the control of traffic on military roads, including provisions for the grant of licences or permits to travel on any such road. By regulations made under this ordinance—the Military Roads Regulations 1942—provision was made for the keeping of a register of vehicles licensed under the regulations. It was provided that the Registrar might upon application by the owner grant a licence in respect of any commercial motor vehicle which was intended to be driven on any military road (reg 3). No provision was included for the grant of a licence under the regulations in respect of any other kind of vehicle. It seems very doubtful that the regulations should be read as giving an implied authority to grant such a licence. The expression "commercial motor vehicle" was defined to mean any motor vehicle built or adapted to carry goods or to carry more than seven passengers. Regulation 8 provided that a person should not drive any vehicle on a military road unless a licence had been issued in respect of the vehicle and the licence was in full force and effect. It was provided, also, that the Administrator or the Registrar might close the whole or any portion of a military road to all vehicular traffic and that the Commandant or any authorized officer might issue a permit in respect of a vehicle allowing it to be driven on a closed military road or part thereof. The effect of reg 8 appears to have been that (subject to the provisions in the ordinance making it inapplicable to certain persons and vehicles) the driving on a military road of a vehicle, other than a commercial motor vehicle, must have been a breach of the regulations, because no licence could have been obtained for such a vehicle. The 1942 ordinance and the regulations made under it contain laws which were quite different in character from laws which provide generally for the registration of motor vehicles and for the issue of drivers' licences. Laws of this latter kind were contained in the Motor Vehicles Ordinance 1930 of the Territory of North Australia and in subsequent ordinances which amended it. The existence and the continued operation of the Motor Vehicles Ordinance 1930-1940 were recognized in the Military Roads Regulations: see regs 3 (2) and (6). (The copy of the 1930 ordinance supplied to the Court at the hearing of this action was a copy of an ordinance made for the Territory of Central Australia: see Northern Territory Act 1926, repealed by the Northern Territory (Administration) Act 1931. But this mistake as to the applicable 1930 ordinance is of no importance, because in 1930 an ordinance for the Territory of North Australia was also made in the same terms and this continued in operation after the repeal of the 1926 Act: see Northern Territory (Administration) Act 1910-1931, s 16.) The Control of Roads Ordinance 1953 NT repealed the Military Roads Ordinance 1942. It appears that the latter ordinance continued in force until the former ordinance came into operation, which was on 1st April, 1954. So far as I have been able to ascertain, the Military Roads Regulations were not repealed or amended, in any relevant respect, during the period from 1942 to 1954. The Control of Roads Ordinance 1953 contained a provision which had the effect, in my opinion, that the road which crossed the subject land was vested, prior to and at the date of the acquisition, in the defendant. Section 7 of that ordinance provided: "All roads in the Northern Territory, together with the timber growing on those roads and all bridges, culverts, water-tables, kerbs, gutters, footpaths, lamps, direction boards, mile-stones, mile-posts, rails, posts, walls, chains, fences and other things erected on or affixed to those roads are the property of and vested in the Commonwealth and are under the care, control and management of the Administrator". Section 5 provided that in the ordinance, unless the contrary intention appeared, the term "road" means: (a) all streets, roads, courts, alleys, thoroughfares and cul-de-sac which were, immediately before the date when this Ordinance comes into operation, public streets, roads, courts, alleys, thoroughfares or cul-de-sac within the meaning of any law then in force in the Northern Territory; (b) all streets, roads, courts, alleys, thoroughfares and cul-de-sac of which the public has had uninterrupted use, whether before or after the date when this Ordinance comes into operation or partly before and partly after that date, for at least five years; and (c) land which, whether before or after the date when this Ordinance comes into operation and whether within the limits of a mineral or gold field proclaimed under the provisions of the Mining Ordinance 1939-1953, or otherwise—(i) is proclaimed, dedicated, resumed or otherwise established as a public street, road or thoroughfare; (ii) is opened as a road or is declared to be a road by the Administrator pursuant to this Ordinance; (iii) is reserved or left as a road in a subdivision of Crown land; (iv) is conveyed or transferred to the Commonwealth in fee simple and is accepted by the Commonwealth as a road; or (v) is used as a thoroughfare passing through or over Crown land, whether alienated or otherwise. In my opinion, the Stuart Highway, or at any rate the part of it with which we are here concerned, was a road which at the date when the Ordinance came into operation satisfied the terms of par (b) of that definition. I think it is beyond question on the evidence that for more than five years before that date the public had had in fact the uninterrupted use of the road. Subject to some submissions on this aspect of the case to which I shall presently refer, the conclusions just stated make it unnecessary to consider whether or not the road answered the descriptions in par (a) and par (c) of the definition. I heard lengthy argument on the questions whether upon the facts it should be found that there had been a dedication of the road as a public road and whether a dedication could be effectively made and could bind the registered proprietor of the land, having regard to the relevant provisions of the Real Property Act 1886 SA, to which some further reference will be made later. These questions would require consideration if it had to be decided whether in 1954 the road had been "dedicated" or "otherwise established" as a public road, within the meaning of par (c) of the definition. They would be important, also, if it had to be decided whether, quite apart from the operation of the Control of Roads Ordinance, the road had become a public road, by being dedicated to public use, before the date of the acquisition. But, in my opinion, these questions need not be decided. I am of opinion, in the first place, that the Stuart Highway came within par (a) of the definition. Although the Military Roads Ordinance 1942 did not describe it in terms as a "public road", the ordinance included it by name in the definition of "military road" and it described the Stuart Highway as the main motor road from Darwin to Alice Springs. Furthermore, it subjected it to a large measure of control for public purposes. In these circumstances I think it could be properly said that it was, within the meaning of that ordinance, a "public" road and, therefore, came within the terms of par (a). But whether that be so or not I am satisfied, as I have said, that for more than five years the public had had the uninterrupted use of the road. Therefore, it came within par (b) of the definition and s 7 of the 1953 ordinance operated on it. By the Control of Roads Ordinance 1955 the definition of road was amended. Paragraph (b) was omitted. But, in my opinion, that had no effect upon the vesting of the road in the Commonwealth, which had already taken place. No enactment was made to divest from the Commonwealth any road which had vested in it under the 1953 ordinance. The mere repeal, in part, of that ordinance could not operate, in my opinion, to divest a road which had already vested in the Commonwealth: see Acts Interpretation Act of 1901 Cth, as amended, made applicable to ordinances of the Northern Territory by the Interpretation Ordinance 1931 NT, as amended, s 4. The operation of s 7 to confer proprietary rights on the Commonwealth is not expressed to be subject to registration in the case of land registered under the Real Property Act and, in my opinion, there is no warrant for treating the provision as having no effect upon the rights of the former registered owners of the land. From the terms of the provision, it is plain that proprietary rights are conferred on the Commonwealth in respect of the roads and of the bridges etc. erected in or affixed to the roads. I do not think it matters for present purposes whether the provision has the effect, so far as a road is concerned, that what becomes the property of the Commonwealth is limited to the surface of the road and such portion of it as is necessarily incidental to its maintenance and control and is not the whole of the land below the road and the space above it: see Municipal Council of Sydney v. Young [(1)] ; Mayor, etc., of Tunbridge Wells v. Baird [(2)] ; and Commissioner for Main Roads v. B.P. (Australia) Ltd [(3)] . If it be assumed that the rights conferred were less than a fee simple estate in the land upon which the road was constructed, it is plain that they extend at least to the bitumen sealing and to the gravel pavement and compacted earth beneath the bitumen surface. The plaintiff's claim in relation to the road is for the value of 400 feet of "consolidated roadbed with bitumen surface", estimated at $3 per foot. In my opinion this "roadbed" was not the property of the plaintiff but was vested in the defendant. 1. [1898] A.C. 457. 2. [1896] A.C. 434. 3. (1964) 10 L.G.R.A. 423, at p. 438. It has been argued for the plaintiff that no use of the road could be a use of it within the meaning of par (b) of the definition of road in the ordinance if it were unlawful. Then it was said that the use of the road, or at least some of that use, which took place in the years immediately preceding 1954 was unlawful or at all events has not been shown to have been lawful. Reliance was placed upon the Military Roads Ordinance and the regulations made thereunder. I have referred to these and I have observed that it does appear that the use, by the public generally, of vehicles other than commercial motor vehicles was a contravention of the regulations. No satisfactory explanation has been given in evidence concerning what happened. There is abundant evidence of the postwar use of the road by civilians for various purposes in all kinds of vehicles. Some of the witnesses were asked whether they obtained any "permit" or were aware of any requirement for a "permit" and answered that they had no knowledge of any such requirement. It is possible that some of the vehicles then using the road were licensed under the regulations, but it is probable that many were not. Even if my opinion that under the regulations licences could be granted only for commercial motor vehicles is wrong and if licences were issued also for non-commercial vehicles, it seems plain from the evidence that in fact most vehicles were not so licensed in the postwar period. I think that it is to be inferred from the evidence that there was not any enforcement in that period of the requirement that a vehicle should be licensed under the Military Roads Regulations if it were to be driven on the Stuart Highway. Towards the end of the hearing of this action it was stated by counsel that the facts relating to this matter would be further investigated and it was arranged that if the parties should agree as to the facts an affidavit or statement would be transmitted later to the Court. At a much later time I was notified formally by the parties that they had been unable to agree on a statement relating to the operation of the regulations and they asked that the matter be determined on the evidence already before the Court. For the reasons that I have stated, it appears probable on the material that has been placed before me that many of those who used the road from 1946 to the end of March 1954 did so in breach of the regulations. But that does not affect the operation of the Control of Roads Ordinance 1953. In my opinion the expression "uninterrupted use" does not exclude as a matter of construction any use by the public which involves such a breach. The purposes for which the ordinance was enacted were not such as to require that such a limitation ought to be put on its meaning. It was not designed, and in particular s 7 was not designed, to confer benefits or privileges upon persons by reference to the use which they had been making of the road. There is no reason to limit its meaning by an implication that it was not intended to allow the users of the road to obtain benefits from their own unlawful acts. Thus there is no basis here for the application of the principle of construction adopted in Grozier v. Tate [(4)] and in Nash v. Stielow [(5)] ; cl. Parramatta City Council v. Brickworks Ltd [(6)] . 1. (1946) 64 W.N. (N.S.W.) 1. 2. [1950] V.L.R. 39. 3. (1972) 26 L.G.R.A. 437, at p. 455. For the foregoing reasons I am of opinion that the plaintiff's claim that the existence of the road added to the value of the resumed land should be rejected. I should state here that I do not regard the words used in s 7 of the Control of Roads Ordinance 1953, referring to "other things erected on or affixed to those roads", as bringing within its scope any part of the other "works" with which this case is concerned. It has not been argued that it did so operate. (B) The telephone line. I shall refer next to the telephone line. According to the statement of facts the length of the line crossing the subject land is 400 feet and three steel poles supporting it are on that land. Two of the poles and one-half of the other equipment of the line remained on 22nd April, 1971, as they had been when the line was originally constructed. The third pole and the balance of the equipment were replacements or additions. All the materials had been the defendant's property. The line was constructed in 1944 by members of the military forces and was constructed for a purpose connected with defence and with the prosecution of the war. This construction had been directed by the acting Minister of State for the Army. Up to 1966 it was maintained and serviced by members of the defence forces. Thereafter, it was maintained and serviced by servants of the Postmaster-General's Department. Mr Doyle described the line as consisting of three steel poles with wooden crossarms, four insulators and fourteen copper wires 400 feet in length. In his valuation he did not assign any separate values to the poles and the other items of equipment. He valued the 400 feet of line at $200. In my opinion the line was vested prior to the date of the acquisition of the subject land in the Postmaster-General, in accordance with s 94 (2) of the Post and Telegraph Act 1901 Cth, as amended. It is an agreed fact that the line was, after 1966, maintained and serviced by workmen of the Postmaster-General's Department. Whether or not the inference should be drawn that it was then "acquired" by the Postmaster-General, it has answered since then the description of a line "maintained" by the Postmaster-General. By definition in s 3 of the Post and Telegraph Act the "line" includes the posts supporting it and the apparatus connected with it. It was suggested by counsel for the plaintiff that if given its full literal meaning s 94 (2) must be invalid because it would operate as an acquisition of property without compensation. It was suggested that the provision could operate, according to its terms, so as to deprive an owner of a line of his property in it. But it is necessary to bear in mind that, subject to the exceptions mentioned in s 80, no private person has a right either to erect or to maintain a line. In my opinion it is not necessary to deal with the suggestion that in part s 94 (2) may be invalid or to deal further with other questions which were raised concerning the construction of that provision. For even if that provision had never been enacted, the plaintiff could not maintain, in my opinion, that any part of the line or its supports or equipment ever became part of the subject land. I think it is plain beyond question that the copper wires were not fixtures. As to the poles and their attachments I am likewise of opinion that these did not become part of the realty. It could not be suggested that the removal of the poles would be a major task or would affect the land itself in any adverse way. In my opinion it should be held that having regard to the object of the placing of the poles with the equipment attached to them on the land they did not become fixtures. No doubt it was contemplated that the line would continue to exist permanently or for an indefinite period, as a means of communication. But the siting of the poles on this particular piece of land was not in any way essential to the object in hand, which was not concerned with adding to the enjoyment of that parcel of land, but with providing a line of communication which could be maintained just as effectively if for some reason it became desirable to alter its course so as to bypass this land. As will appear later I do not regard the fact that the object in hand could be achieved by a line which took a different course as conclusive on the question whether it became part of the land. But it is a factor of some importance, in my opinion, when considering the telephone line, which was physically attached to the land to a relatively minor degree. If the question to be considered was whether an actual intention could be inferred that the poles and the line should become the property of the landowner, it seems plain in the circumstances that that question would be answered "No". But, in my opinion, the question is not one of ascertaining the actual intention, but one of determining from the circumstances of the case, and in particular from the degree of annexation and the object of the annexation, what is the intention that ought to be imputed or presumed: see Reid v. Smith [(7)] . In considering this question in relation to the telephone line I am of opinion that if it be supposed that there were no statutory provisions which operated directly to deny that the plaintiff had as owner of the land any property in the line, the circumstances that it was constructed in the first place for war purposes and that afterwards it was taken over by the Postmaster-General, whose rights and duties are regulated by the Post and Telegraph Act, can, nevertheless, be taken into account in determining whether the presumption that whatever is fixed to the freehold becomes part of it has been rebutted by the circumstances: see Commissioner of Main Roads v. North Shore Gas Co. Ltd [(8)] . I am of opinion that the claim of the plaintiff in relation to the telephone line must be rejected. 1. (1905) 3 C.L.R. 656, at pp. 678-681. 2. (1967) 14 L.G.R.A. 413, at p. 417. (C) The power line. The value of that part of this line which crossed the land, based on construction cost less depreciation, was estimated by Mr Doyle at $235. It was constructed in 1945 by servants of the defendant. It formed part of a line for the transmission of electricity from a point south of Darwin to the Manton Dam Pumping Station, to supply electric power to the pumps at the dam. It was a 33,000-volt power line strung in three lines between insulators set in delta formation, supported at intervals of about 8 chains by poles of 4 inch by 2 inch channel steel and concrete about 40 to 42 feet high, known as Stobie poles. One such pole is on the subject land. It is set in concrete to a depth of approximately 6 feet. Some changes were made about 1964 and 1965 in the system of transmission of electricity between Darwin and the Manton Dam and in the functioning of the section of the power line which crossed the subject land. These changes were explained in evidence by Mr McGuinness. I am of opinion that the changes are not of any importance and I need not set them out. A change was also made in the equipment at the top of the pole on the subject land and in the voltage carried by the line. There was evidence that the "siting" of the poles could be changed from the plaintiff's land to other land. In my opinion the reasons that I gave above for the conclusion that no part of the telephone line or its supports became part of the plaintiff's land are applicable to the power line and, therefore, I think that the plaintiff's claim in relation to the power line fails. It is true that the line was affixed to the land by means of the pole set in concrete. But when the degree of annexation is considered in conjunction with the object of the annexation, I think the conclusion should be reached that neither the pole itself nor the lines and their supports and insulators became part of the land over which the line crossed. (D) The 12-inch pipeline. This was placed on the subject land in 1939 as part of a pipeline supplying water to Darwin from the Manton Dam. It crossed the land for a distance of 365 feet. It is constructed of concrete-lined steel pipes in 30 feet sections butt-welded supported on precast concrete cradle supports set in poured concrete at 15-feet centres along the line of the main from Manton Dam to Darwin (see par. 44 of the statement of facts). Although generally it is above the ground surface the line in crossing the plaintiff's land is above the surface for approximately 100 feet only (see par. 45). Thus more than one-half of it is under the ground. At various points, but not on the subject land, it has been joined at an angle by means of a forcing block of concrete set into the soil. To effect this join the pipeline was first strapped by six steel straps to two anchor blocks set in the soil one on either side of the forcing block and the forcing block was then poured around the open ends of the two pipes anchored by the anchor block (see par. 46). To remove the pipes from the forcing block, it would be necessary to break the concrete of the forcing block by the use of an aircompressor and jack-pick (see par. 47). The pipeline has been maintained and repaired by servants of the defendant. Detailed evidence was given by Mr Doyle about the concrete supports of this pipeline, as well as those of the 15-inch pipeline, and photographs were put into evidence. It is not necessary to traverse these details. The first question is whether the pipes and the supports became part of the land. In this case the degree of annexation was very great. A major part of the line is buried beneath the ground. The rest of it is very firmly affixed to the land. The pipes could be removed but this would be a major task. It has not been shown that any authority was given by statute or by grant or agreement by the owners for the placing in and on the land of this pipeline. In my opinion, this is a factor of importance in deciding the question under consideration: see Wake v. Hall [(9)] . If the defendant had acted under statutory authority or by virtue of a right granted by the owners, it might more readily be concluded that the presumption arising from the annexation to the land was rebutted. No doubt the defendant's purpose was not to add to the enjoyment of the plaintiff's land but was to use the pipes as a means of conveying water from the dam. But unless it is to be held that the presumption that what is affixed to land becomes part of it can never arise in the case of pipes conveying water or other substances from a place of supply to a place of consumption, there is, I think, no sufficient reason in the circumstances relating to this pipeline to assert that that presumption did not arise or that it was rebutted. In my opinion, there is no justification for denying that the presumption can ever operate in relation to such pipes, although in many cases there are statutory provisions under which they are laid down which leave no room for the operation of the presumption. 1. (1883) 8 App. Cas. 195, at p. 202. It was submitted on behalf of the defendant that it had acquired by prescription a right to have the pipeline on the plaintiff's land. It seems to have been assumed that if this were established it would follow that the pipeline should not be taken into account at all in valuing the land for the purposes of the Lands Acquisition Act. I do not agree with that assumption. Whether or not the defendant had the benefit of an easement it would remain necessary to value the land as at the date of acquisition with any improvements which were then on it and which had become part of it. Since it was suggested in argument that an owner whose land is subject to an easement is not entitled to recover the full value of an estate in fee simple in the land, I should state here that what was acquired by the defendant was not expressed to be a limited interest in the land. The pleadings and the evidence on both sides have proceeded on the assumption that the action is to determine the amount of compensation in respect of the fee simple estate in the land. However I do think that a valuer, when considering what was the price which the defendant as a purchaser would have given and the plaintiff accepted, might properly consider that there is a difference between a situation in which the plaintiff, if remaining the owner of the land, could call upon the defendant to remove the pipeline and a situation in which the owner could not do so. In either case a valuer might allow something in respect of the presence of the pipeline on the land, but he would no doubt allow more in the former than in the latter case. I proceed to consider the claim that the defendant was entitled to an easement by prescription. The defendant bases its claim upon the long period of time during which the pipeline was used and the absence of any attempt to prevent that use and of any objection to it. One answer which the plaintiff makes is to say that the owners of the land were proprietors under the provisions of the Real Property Act 1886 SA, and that the provisions of that Act prevented the impairment of their title by any easement by prescription not notified on the certificate of title. It is not in dispute that the 1886 Act is applicable to the subject land. Section 69 thereof provides that the title of every registered proprietor of land shall, subject to such encumbrances, etc., as may be notified on the original certificate of title of such land, be absolute and indefeasible, subject to certain qualifications which are then set out. The relevant qualifying provision is: "IV. Where a right-of-way or other easement not barred or avoided by the provisions of the " Rights-of-way Act 1881 ", or of this Act, has been omitted or misdescribed in any certificate, or other instrument of title: In which case such right-of-way or other easement shall prevail, but subject to the provisions of the said " Rights-of-way Act 1881 ", and of this Act". The defendant contends that this provision is applicable, to except the easement it claimed from the operation of s 69. I think this raises a difficult question. It is not to be resolved simply by making a choice between divergent decisions that have been given on similar questions in relation to legislation in force in New Zealand or in various States other than South Australia. It is to be determined by reference to all the relevant provisions of the particular statute under consideration. On this point I agree with the observations of Burbury C.J. in Wilkinson v. Spooner [(10)] . 1. [1957] Tas. S.R. 121, at p. 127. I have come to the conclusion that the claimed easement is not within the quoted exception to s 69 and that the defendant's claim cannot be sustained. A distinction has to be made between rights of way and other easements and I am concerned here only with easements other than rights of way. The reason for the distinction is that ss 83 and 85 relate to rights of way only. My conclusion is based on a consideration of the provisions of ss 84, 86 and 88, in conjunction with those of s 69. Although I think it may be difficult to contend that these later sections contain provisions by which in express terms easements by prescription are "barred or avoided" within the meaning of s 69 (IV), I think that they do indicate a legislative intention inconsistent with the acquisition by prescription of easements adversely to a registered proprietor. It appears that in s 84 it is assumed that an easement created by express grant but not entered on the certificate of title is binding upon the registered proprietor who grants it. But the fact that this provision is made in relation to easements created by express grant or transfer and that no similar provision is found in relation to easements claimed to have arisen by prescription is, in my opinion, significant. Section 88 provides for the entry by the Registrar-General of a memorial of an easement "granted or created", upon the original certificates of the dominant and servient lands and their duplicates. An easement based upon prescription does not satisfy, in my opinion, the description of an easement "granted or created", although it may well be that it could be described as an easement "existing upon any land" if the case were concerned with such a provision as s 42 (b) of the Real Property Act of 1900 NSW. The special provisions made in s 86 to ensure the effectiveness of any easement acquired or enjoyed by the public gives support, in my opinion, to the view that a private easement not based on any actual grant and not notified on the certificate of title is not effective against the registered proprietor. In reaching the conclusion that I have stated I do not find it necessary to dissent from anything decided or stated in James v. Registrar-General [(11)] , or in Berger Bros Trading Co. Pty Ltd v. Bursill Enterprises Pty Ltd [(12)] . Both cases dealt with express grants and not with prescriptive rights. Both were concerned with s 42 (b) of the Real Property Act of New South Wales. In an appeal to this Court in the second of those cases the question as to the meaning and operation of s 42 (b) was left undecided: see Bursill Enterprises Pty Ltd v. Berger Bros Trading Co. Pty Ltd [(13)] . 1. (1967) 69 S.R. (N.S.W.) 361. 2. (1969) 91 W.N. (N.S.W.) 521. 3. (1971) 45 A.L.J.R. 203. It is unnecessary for me to consider the questions of fact upon which the claim to an easement by prescription depends. But there are three matters to which evidence was directed upon which I think I should state my conclusions. The first is that I am of opinion that user of the pipeline from the time of its construction up to the end of the war could not be counted as adverse user in which the owners of the land must be taken to have acquiesced. Nothing is known as to the circumstances of the previous owners who sold the land to the members of the McMillan family in 1942. From that time until the end of the war conditions were such that acquiescence should not be imputed. The second matter to which I wish to refer is the evidence as to the difficulty of locating the boundaries of the lands in this area comprised in any certificate of title and the resulting difficulty on the part of a registered proprietor of knowing whether land upon which a pipeline or any other work was placed was within or outside his land. Without doubt such difficulties did exist, but I think it is a proper conclusion upon all the evidence that from about 1951 it would have been possible for the owners of the subject land to find out, if they had really wished to do so, whether the road and the other works were on their land, and I would not regard the difficulties involved in obtaining this information as explaining sufficiently a failure to make any attempt to assert their rights. It is true that at a much later date the answering of inquiries directed to government officers was fobbed off by excuses referring to the incompleteness of available survey details. But, in fact, it seems that sufficient information was available by 1951 or 1952 to enable it to be ascertained that the Stuart Highway passed over the McMillans' lands. Finally, I have considered the evidence of Mr James about his conversations with Mr Neil McMillan in which, in effect, complaints were made about delays in getting compensation. These complaints and inquiries appear to have begun in or after 1957. I have considered also the many letters contained in Ex. C. Most of this correspondence was between Mr Maxwell McMillan and various people concerned with the administration of the Northern Territory. The letters are concerned mainly, if not entirely, with the land constituting section 289, rather than with the particular area in which the subject land is situated. There are in the same exhibit some letters written by or on behalf of Mr Neil McMillan or his estate. My conclusion is that if the claim to an easement by prescription were otherwise made out, neither the complaints and inquires to which Mr James referred, nor the writing of the letters in Ex. C, would prevent the claim from being upheld. Even if the evidence had established (as, in my opinion, it did not) a distinct claim for compensation for the particular user upon which the defendant relies in support of its claim to easements relating to the plaintiff's land, I am of opinion that this would not bring about the result that the user was not adverse to the plaintiff and her predecessors in title. It may have been otherwise if the claim had been distinctly acknowledged by the defendant and it would certainly have been otherwise if payment for the user of the land had been made: see Gardner v. Hodgson's Kingston Brewery Co. Ltd [(14)] . But the mere making of a claim for compensation would not suffice, in my opinion, to affect the acquisition of a prescriptive right. 1. [1903] A.C. 229. In relation to the subject of prescription, submissions were made on the question whether the Prescription Act 1832 Imp, was in force in South Australia as it was held to be in White v. McLean [(15)] , and on the question whether the lands of the defendant, upon which the Manton Dam and the tanks used in connexion with the water supply are situated, constituted dominant tenements for the benefit of which easements could be acquired over the plaintiff's land: see Re Salvin's Indenture; Pitt v. Durham County Water Board [(16)] . But these are questions upon which I need not express any opinion. 1. (1890) 24 S.A.L.R. 97. 2. [1938] 2 All E.R. 498. I conclude that the plaintiff was entitled to have the 12-inch pipeline taken into account in the valuation of the subject land. (E) The 15 inch pipeline. This line was wholly above the surface of the land. But the method of its attachment to the land was similar to that used for the 12-inch pipeline. With minor variations, the facts which are stated above as being derived from pars. 44, 46 and 47 of the statement of facts apply also to this pipeline. In my opinion it should be decided in this case as in that of the 12-inch pipeline (subject to certain submissions which have yet to be considered), that taking into account the degree and the object of annexation of the pipeline and its supports to the land they became and remained part of the land. The defendant claimed an easement by prescription. The considerations affecting that claim are similar to those relating to the claim made in respect of the 12-inch pipeline and for the same reason as I gave in dealing with the latter claim I reject the contention that such an easement was acquired. In this instance that contention was alternative to submissions based upon regs 53, 55AA and 55A of the National Security (General) Regulations as in force on 15th November, 1943, and thereafter, made under the National Security Act 1939 Cth, as amended. Before referring to those provisions it is desirable to set out some further facts from the agreed statement of facts. It contains the following paragraphs: 56. THAT in September 1944 the defendant decided that for purposes then connected with the defence of the Commonwealth, and the prosecution of the Second World War, a new 15 inch internal diameter pipeline should be constructed from the Manton Dam approximately 42 miles south of Darwin, to Darwin. That in the first instance, it was decided that the laying of the said pipeline would be undertaken by the Department of the Army in conjunction with the Allied Works Council. 57. THAT subsequently it became impracticable for the Department of the Army to provide the necessary labour to lay the said pipeline and arrangements were made for the Allied Works Council to assume responsibility for carrying out the work. 59. THAT clearing of a route for the said pipeline in general and in particular where it crossed over the subject land was carried out at some time between the 10th day of November 1944 and the 4th day of July 1945 by members of the Civil Construction Corps employed by the Allied Works Council of the Defendant. 60. THAT precast concrete supports for the pipeline were placed in position on the subject land at intervals of 30 feet along the route of the pipeline in or about the month of August 1945 by members of the Civil Construction Corps employed by the Allied Works Council. 62. THAT the laying and welding of the pipeline on the subject land was carried out by employees of Hume Steel Limited after the month of August 1945 pursuant to a contract for that purpose made between the Defendant by its agent the Allied Works Council and the company. 65. THAT the laying of the whole of the pipeline from Manton Dam to Darwin was completed in December 1945 but by reason of delays in carrying out ancillary work at Manton Dam, including the installation of electric motors and pumps, the whole of the work was not completed until in or about the month of February 1947. 66. THAT water from the Manton Dam first flowed through the pipeline over the subject land on or about the 29th day of February 1947 and water has continuously flowed through the pipeline since that date. To those facts it should be added that there are documents which show that the project was designed initially to provide for the requirements of ships using the port of Darwin and was put forward by the Department of the Navy not the Department of the Army. Regulation 53 (1) provided: "Any member of the Defence Force acting in the course of his duty as such, and any person thereto authorized by the Minister of State for the Army, may, for any purpose connected with the defence of the Commonwealth, the prosecution of the war, the securing of the public safety or the maintenance of supplies and services essential to the life of the community, do any work on any land, or place anything in, on or over any land." Further provisions were made in regs 54 and 55 authorizing the taking of possession of land on behalf of the Commonwealth and the making by the Minister for the Army of orders authorizing the use of land for military purposes. Regulation 55A provided that all buildings, fittings, fixtures or other structures place or erected by the Commonwealth in or on or affixed by it to any land possessed or used by the Commonwealth in pursuance of powers contained in those regulations should remain the sole property of the Commonwealth and it should have the right at any time to remove such buildings etc. Regulation 55AA was to the effect that when any of the powers conferred by regs 53, 54 and 55 had been exercised in relation to any land and the land was later compulsorily acquired, the value of the land should, for the purpose of fixing any compensation in respect of the acquisition, be assessed without reference to any increase in value arising from anything done on or in relation to the land by or on behalf of the Commonwealth or the Administration of a Territory or any authority thereof. By the Defence Transition (Residual Provisions) Act 1952 Cth it was provided that certain regulations should be in force until 30th June, 1953, and certain others should be in force "until otherwise provided by law". Regulations 54, 55AA and 55A of the National Security (General) Regulations and also the provisions for compensation in reg 60B and following regulations were included amongst the regulations continued indefinitely, but reg 53 was not. The defendant has contended however that regs 55AA and 55A continued to operate upon structures placed on land in pursuance of the power conferred by reg 53 and upon the valuation for compensation purposes of land in relation to which that power had been exercised, notwithstanding that reg 53 itself was not continued in force. The plaintiff has disputed this and has also raised a question as to the validity of the 1952 Act in so far as it was expressed to keep in force indefinitely the provisions of regs 55AA and 55A. In my opinion it is not necessary to decide the questions I have just mentioned. The reason is that I am not satisfied that the pipeline was placed on the land in pursuance of a power conferred by reg 53. The work was not done in fact by members of the defence force in the course of their duties as such. The question whether it was done by a person or persons "thereto authorized" by the Minister of State for the Army is a question of some difficulty. But after a consideration of the facts set out above and of the documents contained in Ex. 20, consisting of War Cabinet agenda and minutes and departmental communications, I have come to the conclusion that, although there is no doubt that the Minister of State for the Army was aware of the project and assented to it, it has not been shown that it was he who (either personally or through a delegate) authorized the doing of the work by the persons who did it. It may be that reg 53 does not require that the authority for the work should be given in writing. But it does require, in my opinion, that there should be some specific act of authorization which is the act of the designated Minister himself or of his delegate. (The document, Ex. 4, has no relevance in my opinion to the construction of the 15 inch pipeline.) For the effective operation of that part of the regulations which gave rights to claim compensation it was desirable that it should not be difficult to ascertain whether any interference with a landowner's rights was or was not a thing done in pursuance of one of the regulations (which included reg 53) mentioned in reg 60D. The evidence does not show, in my opinion, that it was the Minister of State for the Army who instructed the Allied Works Council to undertake the work or to enter into the contract with Hume Steel Ltd mentioned in the statement of facts. I think it is clear that the work was not done in pursuance of reg 54 or reg 55. I am of opinion therefore that regs 55AA and 55A did not apply to it. I find that the plaintiff was entitled to have the 15 inch pipeline taken into account when the land was valued for the purposes of compensation. 3. The determination of compensation. There remains the task of determining what amount should be fixed as the value of the land. I am not concerned in any way in this action with any question of compensation for the use by the defendant for many years of the plaintiff's land for the various works to which I have referred. No compensation was ever paid for the use of the land for any of those purposes. But whatever rights of compensation the owners may have had, or may still have, and whatever indignation they may have felt (as indicated in some of the letters in Ex. C) about the conduct of the defendant, this action is concerned solely with determining the value of the land as at the date of acquisition. It would be wrong, in my opinion, when considering for that purposes a hypothetical bargaining between the plaintiff and the defendant to treat her as holding out for a very high price in order to secure by that means some recompense for the prior use of the land by the defendant. Likewise I think it would be wrong to treat the defendant as taking into account, in order to limit the amount that it would pay, the possibility of the enactment of validating legislation to enable the defendant to acquire without compensation any improvements which did not belong to it already. What has to be determined is the value of the land with the improvements which had accrued to it. Upon the conclusions that I have reached that means its value with the two pipelines on it. In my opinion, it is plain in the circumstances of the case that the defendant has to be considered as a potential purchaser and as one likely to be willing to pay more for the land than any other purchaser would pay. Certain questions were raised in submissions made on behalf of the defendant as to limitations that may need to be placed both upon the applicability of the principle accepted by the Privy Council in Raja Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer Vizagapatam [(17)] , and upon the ambit of the "potentialities" to which that principle is to be applied. It is sufficient for me to say in relation to those submissions that it is not open to me to take any course other than that of following the method of determining the compensation payable which was approved in the recent case of Collins v. Livingstone Shire Council [(18)] . 1. [1939] A.C. 302. 2. (1972) 46 A.L.J.R. 411. It was said by Mr McDonald that he had regard to the fact that the services provided by the works on the land were extremely important to the landowner because without them the land would be much less valuable. He said that for that reason the owner would be anxious not to lose those services. I do not accept that as a correct approach to the problem of valuation in this case. The availability of the services would have no doubt a bearing upon the value of the land. But as I have understood the evidence this factor is reflected in the unimproved value assessed by Mr Doyle, which is not in dispute. It does not appear that any value that was derived from the availability of the services was dependent upon the actual crossing of the plaintiff's land by the road, the mains and the lines. The added value derived from the proximity of those services was shared in common by all the land in the area. Mr Doyle considered that the only available method of taking into account the improvements was to fix the cost of their construction and to deduct an appropriate amount for depreciation. To a large degree he based that opinion on his understanding of the case of Geita Sebea v. Territory of Papua [(19)] . It is now clear that this is a factor to which regard may be had in making a valuation but is not itself the determining measure of value: see Collins v. Livingstone Shire Council (supra). That case was argued before but was decided after the present action was heard. Mr Doyle assessed the added value of the land derived from the 12-inch pipeline at $1,783 and the added value from the 15-inch pipeline at $2,854. He did not apply his mind to any alternative method of valuation. 1. (1941) 67 C.L.R. 544. Mr McDonald endeavoured to take into account and to weigh up a number of different factors. I think it was quite legitimate to consider as he did the question of value from different points of view and then to seek to arrive at a figure that could be taken to represent an adjustment or a balancing of the results thus obtained. I think that it is true, however, that in the end the assessment made must be a somewhat arbitrary one. It can scarcely be reached by a process of reasoning that can be seen to lead inevitably to one "correct" conclusion. Mr McDonald had regard to the replacement cost of the improvements, less depreciation. In relation to the pipelines he accepted Mr Doyle's figures for this cost. He had regard to the question of the utility of the pipelines to the acquiring authority and in the case of each of them he fixed the utility value at $100. The fixing of that figure was influenced by the consideration that the defendant might seal off the pipelines on each side of the subject land, relying thereafter for the main supply of water upon a 30 inch pipeline which had been installed and upon a still larger one that was contemplated. But on my view of the evidence in the case, I find it was unlikely that this would have been seriously considered, except as a very last resort and I cannot think that it would have played a significant part in the determination by the defendant of the price which, as a purchaser, it would be willing to give for the land. Mr McDonald referred to what he called a value in situ or a demolition value. In the case of each pipeline he regarded this as being nil because the cost of cutting up the pipes and carrying them away for use elsewhere would exceed the prices that could be obtained. Mr McDonald took into account that there were doubts as to whether or not the improvements were fixtures or could for some other reason be taken by the defendant without paying anything for them. The figure assessed by Mr McDonald for each pipeline after considering the various factors which he mentioned was $100. But he gave evidence, also, of alternative assessments for each pipeline made on the assumption that the water supply could not be cut off at the boundaries of the plaintiff's land but would continue to cross it. The method adopted here was to take Mr Doyle's depreciated replacement figures as starting points and then to seek to arrive at figures by which the parties, after weighing all relevant considerations, might meet in their assumed negotiations. Mr McDonald was of opinion that, all things considered, the defendant would have had "a little more strength in the bargaining" and that the figures should be fixed somewhat below the mid point between nil and the replacement figures given by Mr Doyle. In this way he arrived at $800 for the 12 inch pipeline and $1,350 for the 15 inch pipeline. It may be said, I think, that there is really no particular reason why the parties to the hypothetical bargaining should be regarded as being disposed, prima facie, to split the difference between nil and the top figure sought by the seller. But I acknowledge that I know of no preferable formula, if any such formula is capable of being of assistance in solving the problem. I do not think it necessary to refer to the evidence tendered (a) about removal costs and (b) about removal and relocation costs, since in the circumstances here existing, I do not think that it is by reference to those costs that the value of the land ought to be determined. I am of opinion that in seeking to apply the rule enunciated in Collins v. Livingstone Shire Council (supra) to the circumstances of the present case, something substantially less than the full amount of the depreciated replacement costs should be taken as representing the additions to the price that the plaintiff might have been willing to accept and the defendant to pay. I think it is legitimate to take into account the fact that in the plaintiff's hands the pipelines as structures or as scrap would be of little value. I think it is proper, also, to consider that the unimproved value of the land was relatively small. The plaintiff was entitled to the benefit of any addition to the value of the land which arose from the inducement that the defendant had to pay more for it than its ordinary unimproved value. But I am of opinion that it is probable that the plaintiff would have been quite willing to sell, at a price several times higher than the unimproved value, without insisting upon receiving as much as the full (depreciated) replacement cost of the pipelines. I have come to the conclusion that the figures adopted by Mr McDonald in his alternative assessments based on the depreciated replacement costs were not unreasonably low, but were on the other hand a little too generous. But I am of opinion that his initial assessments of $100 for each pipeline were too low. I have decided the land should be found to be of the value, at the date of acquisition, of $2,332, made up by adding to its unimproved value the sum of $750 with respect to the 12 inch pipeline and the sum of $1,250 with respect to the 15 inch pipeline. The compensation thus fixed will bear interest, in accordance with s 36 of the Lands Acquisition Act, from the date of the acquisition of the land. The costs of the plaintiff payable by the defendant should include, in the circumstances of this case, the costs associated with those issues upon which the plaintiff has not been successful as well as the costs of the issues upon which she has succeeded and the order for costs made below should be so understood. I order that there be judgment in the action for the plaintiff in the sum of $2,332. I order that the defendant pay the costs of the plaintiff of the action. I make the usual order as to the exhibits.