In brief - Seeking a court order imposing the easement if negotiations do not succeed
If your proposed development requires an easement over neighbouring land, but you cannot come to an agreement with your neighbour, a possible course of action is to seek a court order imposing the easement.
Power of court to impose easement over land under section 88K
Under section 88K of the Conveyancing Act 1919 (NSW), the Supreme Court of New South Wales may make an order imposing an easement over land, if the easement is reasonably necessary for the effective use or development of the land to be benefited by the easement.
Before it can make such an order, the court must first be satisfied that:
- the use of the benefited land will not be inconsistent with the public interest
- the owner of the burdened land and those with registered interests in the burdened land can be adequately compensated for any loss or other disadvantage from the imposition of the easement
- the applicant has made all reasonable attempts to obtain the easement or an easement having the same effect, without success
Even if all factors for the imposition of the easement have been made out, the court has an overriding discretion whether to make an order.
Satisfying the test of "reasonable necessity"
To satisfy the test of "reasonable necessity", the easement does not need to be absolutely necessary, but it should be more than merely desirable, preferable to other alternatives, or convenient.
The court takes into consideration all relevant matters, including the impact on the burdened land.
Right of carriageway imposed over community land
In the recent case Samy Saad v City of Canterbury  NSWSC 389, the court imposed a right of carriageway over part of Heynes Reserve (which is community land) to facilitate the construction of a house on the applicant's land. The court held that the right of carriageway was reasonably necessary for the use or development of the applicant's land, having regard to:
- the applicant's land being landlocked by Heynes Reserve and neighbouring houses
- the impossibility of developing the land in accordance with its zoning unless and until adequate vehicular access was provided
- the minimal impact of the right of carriageway on the public's use and enjoyment of the community land
Use of benefited land consistent with the public interest
In the Samy Saad case, the court emphasised that the question is whether the use of the benefited land (not the burdened land) will not be inconsistent with the public interest. The court held that allowing access to occupiers of a house to be constructed on the land was consistent with the public interest in the use or development of the land for its designated purpose.
Adequate compensation for the imposition of the easement
In some cases, no payment will be able to compensate the neighbour for the imposition of the easement. For example, if the easement interferes with peace or privacy, payment of a sum of money may not be adequate compensation.
In Samy Saad, the Council argued that financial compensation may not be adequate because of the lack of suitable available replacement land for purchase by the Council. However, having regard to the Council's earlier refusal to buy the landlocked block of land, the court was not persuaded that the Council would be interested in acquiring replacement land if appropriate land became available.
Applicant's reasonable attempts to obtain access to his land
In Samy Saad, the court was satisfied that the applicant had made reasonable attempts to obtain access to his land before applying to the court for an order imposing an easement.
The applicant had negotiated, unsuccessfully, with one of his neighbours for access through that neighbour's property. The court accepted the applicant's evidence that he did not approach the other two neighbours because their properties did not have room for a driveway.
The applicant had also asked the Council to grant an easement, but the Council had refused the request, advising that it lacked the power to grant the easement and that it would oppose any application to the court under section 88K of the Act.
Try to negotiate for the easement as a first option
If your proposed development requires an easement over your neighbour's land, approach your neighbour to negotiate for the easement. If negotiations fail, you may consider applying to the court to force the creation of the easement.
It is important to realise that if your application to the court is successful, normally the court will order that you pay appropriate compensation for the easement. You will also need to pay the costs of the proceedings, unless the court determines otherwise.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.