Easements imposed by the courts

When will the courts impose an easement over land?

For land to be effectively used or developed, an easement may be required over neighbouring land. For example, a site may not have access to a public road and may require an easement over their neighbour’s land to access the roadway.

Neighbours do not always want new easements over their land – an easement gives the benefitted landowner rights over their neighbour’s land, and can often mean that the neighbour will have restrictions on what they can do on their own land. Understandably, many people refuse to grant an easement over their land.

Court-imposed easements

In some instances, a person may use the court system to obtain an easement over a neighbouring property.

Section 88K of the Conveyancing Act 1919 gives the Supreme Court of New South Wales the power to impose easements over land. In some instances, the Land and Environment Court can impose easements too.

In Rainbowforce Pty Limited v Skyton Holdings Pty Limited, the Land and Environment Court identified the issues that have to be considered before a court will impose an easement on land. Considerations include:

  • Is the proposed easement “reasonably necessary” (more on this below) for the effective use or development of the applicant’s land that will have the benefit of the easement?
  • Will the use of the applicant’s land having the benefit of the easement not be inconsistent with the public interest?
  • Can the owner of the land to be burdened by the easement, and each other person with an interest in that land, be adequately compensated for any loss or other disadvantage that will arise from the imposition of an easement?
  • Have all reasonable attempts been made by the applicant to obtain the easement, or an easement having the same effect, but have been unsuccessful?
  • If yes to each of the above questions – should the court impose an easement?

“Reasonably necessary”?

The critical consideration by the courts is whether the easement is “reasonably necessary” for the effective use or development of the benefitted land.

It must be more than “desirable” or “preferable” to have an easement over the neighbouring land – it must be “reasonably necessary” for the use or development of the site that will have the benefit of the easement. It should also be noted that this test is not whether an easement is “reasonably necessary” for a specific development – it is whether it is “reasonably necessary” for the use or development of the site as a whole.

In determining the reasonable necessity of an easement, the courts will consider:

  • the capacity of the land for particular kinds of land uses or developments;
  • the nature of the specific proposed development (considering things like the type of development that is proposed and it’s particular development requirements);
  • the manner in which the proposed development is to be brought about (considering things like the proposed design and ultimate operation of the development); and
  • the effect of the easement, if granted, on the neighbour’s land.

Even once all matters are considered, it remains solely up to the courts to decide whether to impose an easement.

Consideration in the Land and Environment Court

The Land and Environment Court recently considered the imposing an easement for the creation of an buffer zone from bushfire hazards.

In RVA Australia Pty Ltd v Rosemary Elizabeth Marzouk, RVA Australia Pty Ltd (RVA) owned an undeveloped block of land that they wanted to develop into a recreation camp. RVA wanted to develop their land, but could not achieve the appropriate buffer zone from bushfire hazards next to their site. RVA proposed an easement over Mrs Marzouk’s land that would provide the appropriate separation between the bushfire hazard and their proposed development.

The Land and Environment Court accepted that the easement was “reasonably necessary” for a range of reasons, including:

  • other permitted uses and developments on the RVA land were not commercially viable, and would raise the same bushfire hazard issue;
  • the proposed development was in accordance with the zoning and was an appropriate use of the RVA land;
  • the proposed development was sensitively designed to complement and enhance the natural environment, and was consistent with the natural setting of the site; and
  • the easement would have a negligible effect on Mrs Marzouk’s land.

As well as considering whether the easement was “reasonably necessary”, the Land and Environment Court also considered the other issues raised in Rainbowforce Pty Limited v Skyton Holdings Pty Limited. In doing so, they found that:

  • the easement was in the public interest because the proposed development was in accordance with the zoning and was an appropriate use of the RVA land;
  • Mrs Marzouk could be adequately compensated for the imposition of the easement on her property; and
  • RVA had made numerous and reasonable attempts to obtain the easement without success.

Overall, the Land and Environment Court was satisfied that an easement should be imposed on Mrs Marzouk’s land.

The take-home message is that the courts have the power to impose an easement over neighbouring land – with a critical consideration being whether the easement is “reasonably necessary” for the effective use or development of the benefitted land.

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

2 thoughts on “Easements imposed by the courts

  1. Hi Alyce, I enjoyed this article. it will be very useful to people not familiar with easements,or the remedies available under s88K and s40 of the L&EC Act. I congratulate you on your uncomplicated style and language.
    Regards
    Sandy Rendel

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