The doctrine of lost modern grant portrays the acquiescent servient owner as the active grantor of a deed which was lost.
Secondly, a right to light may be acquired at common law, under the doctrine of lost modern grant or under the Prescription Act 1832.
Thirdly, leaving aside the impact of the Torrens system generally, and the special situation in Tasmania, it is theoretically possible to make a claim for a prescriptive easement under the doctrine of lost modern grant. (114) This is due to the High Court's decision in Delohery and the fact that none of the Parliaments in the states and territories (other than Tasmania in an unusual sense) have directly abolished the doctrine of lost modern grant.
In Delohery, a very early High Court decision, the Court held that a prescriptive right could be acquired on the basis of the doctrine of lost modern grant. In contrast, Simpson CJ in Eq had held that the doctrine of lost modern grant was a fiction which was neither beneficial to the law of NSW nor the country, (115) Therefore, his Honour decided against the plaintiff's claim to an ancient light.
In 2001 that state enacted legislation which both abolished and reinstituted the doctrine of lost modern grant in a modified form.
Overall, the courts actively developed the law of prescription both at common law and in the form of the doctrine of lost modern grant. Confronted with the different and inconsistent bases upon which the latter was rationalised, (152) the House of Lords ensured the ongoing efficacy of the doctrine on a principled basis in Dalton v Angus.
In Delohery, the High Court preserved the doctrine of lost modern grant. In contrast, the state legislatures did not pursue policies which would securely embed prescription in Australian law.
The doctrine of lost modern grant was tolerated only to the extent that it was considered not to hinder economic development.
(207) In a landmark decision for prescriptive easements generally, the NSW Court of Appeal adamantly rejected the operation of the doctrine of lost modern grant in the Torrens system of that state.
4 Abolition of the Doctrine of Lost Modern Grant and the Implementation of a Statutory System
Uniquely in Australia, Tasmania has both abolished the doctrine of lost modern grant (212) and reinstituted a statutory scheme based on the principles of prescription.
(215) An application may be made against a person who is under a disability (and may not have been considered a competent grantor under the doctrine of lost modern grant).