The recent decision in Woodland v Manly Municipal Council
provides a useful summary of principles the Court will have
regard to in determining whether to make an order imposing an
easement to facilitate development of land.
Section 88K(1) of the Conveyancing Act (NSW) provides that
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 other land that will
have the benefit of the easement. Section 88K(2) provides that
such an order may be made only if the Court is satisfied
use of the land having the benefit of the easement will
not be inconsistent with the public interest
the owner of the land to be burdened by the easement and
each other person having an interest in that land can be
adequately compensated for any loss or other disadvantage
that will arise from imposition of the easement, and
all reasonable attempts have been made by the applicant
for the order to obtain the easement or an easement having
the same effect, but have been unsuccessful.
In determining whether to make such an order, the Court will
have regard to the following principles:
As a precondition of the exercise of the jurisdiction, there
must be a finding that the easement sought is reasonably
necessary for the effective use or development of the land
which will have the benefit of it.
That finding involves the making of a value judgement, but
not the exercise of a discretion.
Once that finding is made, and the preconditions in section
88K(2) are fulfilled, there remains a discretion in the Court,
conferred by the use in section 88K(1) of the word
'may', as to whether or not to grant the easement.
By reason of section 88K(2), the Court must be satisfied, as
a precondition of the exercise of the jurisdiction, that
'the use of the land having the benefit of the easement
(ie, the dominant tenement) will not be inconsistent with the
public interest'. The use referred to is the use of the
land taking advantage of the benefit of the proposed
In section 88K(1), the reasonable necessity in question is
necessity for the use or development of the land, not for use
by the current or any other owner.
'Reasonably necessary' does not mean that there must
be absolute necessity, but 'necessary' must mean
something more than mere desirability or preferability over the
alternative means available.
In considering that reasonable necessity, the Court will
take into account whether and to what extent use with the
easement is preferable to use or development without the
easement. That use with the easement is preferable to use or
development without the easement, will conduce to a finding of
reasonable necessity, but is not a necessary precondition to
The impact of the use with the easement on the burdened land
should also be considered in relation to the assessment of
reasonable necessity under section 88K(1). The greater the
impact the less likely the conclusion that there is reasonable
In the end the Court must make an assessment in terms of the
words of section 88K(1), namely, whether it is established that
'the easement is reasonably necessary for the effective use
or development of' the plaintiffs' land.
The Court in acting under the section must bear in mind the
confiscatory nature of the section and require firm proofs of
the reasonable necessity for the easement.
The content of this article does not constitute legal
advice and should not be relied on in that way. Specific advice
should be sought about your specific circumstances.
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