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
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
the use of the benefited land will not be inconsistent with the
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
the applicant has made all reasonable attempts to obtain the
easement or an easement having the same effect, without
Even if all factors for the imposition of the easement have been
made out, the court has an overriding discretion whether to make an
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
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
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
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
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).