In brief - Land could not be used in accordance with
residential zoning unless easement granted
The decision of the Court of Appeal in City of Canterbury v
Saad, shows that an easement of necessity can be granted in
Section 88K of the Conveyancing Act even where a party acquires a
property knowing that the property suffers from a defect which will
require an easement to rectify it.
Council argues that granting easement over public land not in
the public interest
The only way access could be obtained was over two areas of land
owned by council which formed part of a large recreation area.
Council argued that the easement was not reasonably necessary,
that to grant it over public land would be inconsistent with the
public interest (and one of the criteria of Section 88K is that any
grant of easement must not be contrary to the public interest) and
that it was improper for the court to exercise its discretion in
granting the easement.
Easement the only option if land to be used for its zoned
Ultimately, the Court of Appeal unanimously rejected the
The land acquired, even though it was land locked, was zoned
residential and could not be used for that purpose without an
The court found that, in the circumstances, the easement was the
only realistic solution to enable the land to be used for its zoned
purpose and that the area of the right of way was fairly
insignificant when compared to the total recreation area adjoining
the land locked portion.
The court held, following the decision in Rainbowforce Pty Limited v Skyton Holdings Pty Limited
in 2010, that when deciding whether an easement is reasonably
necessary, it is irrelevant to consider whether, when acquiring the
property, the purchaser had taken a commercial risk.
Easement to cause minimal interference to public use of
Whilst the court acknowledged, in accordance with prior
decisions, that the impact of an easement on the property that the
easement would burden and the diminution in the value of the
property the subject of the easement are matters to be taken into
account in assessing whether an easement is reasonably necessary,
these matters are not finally determinative of whether the easement
is reasonably necessary.
In the circumstances, even though there would be some minor
inconvenience to members of the public by having the right of way
in existence over public land, the nature of an easement is that it
involves a shared use and the minimal interference would not have
any significant and adverse affect on the public use of the
Therefore, the public interest argument of council failed and
the court held that there were no facts or circumstances that
justified the court overturning the exercise of discretion by the
judge at first instance.
Acquiring a property which requires an easement can cost you
time and money
The courts seek to facilitate development and use of properties
for their permitted purposes by the grant of easements, provided
there are no material adverse consequences for either the public or
the party which owns the property.
Whilst, in this instance, the applicant went to extraordinary
lengths to stop the grant of the required easement (probably
because it is a public authority), it highlights that if you
acquire a property intending to take the commercial risk with
respect to granting an easement, it can be both a lengthy and
costly exercise. These matters need to be taken into account in
determining the amount of the compensation that may be offered to
the party from which you are seeking the easement.
It is also worth bearing in mind that in similar proceedings,
the party seeking to prevent the easement from being granted risks
an order for costs against it.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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