Stacks Law Firm is a leading Australian legal service provider with more than 250 people operating locally in many Australian communities.
We are committed to supporting the legal needs of everyday Australians and businesses across every stage of life.
This case concerned a property in south-western Sydney. The
property was landlocked by three neighbouring houses to the
south/east and by a council reserve to the north/west. Behind the
council reserve was a footpath that ran along a river and was used
by the public as a walking track.
For many years, the property had been owned by the Roads and
Traffic Authority (RTA), which had plans to build a road along the
river. However, the road was never built and the RTA eventually
sold the land to a private buyer.
Attempts to negotiate with neighbours for access to
property
The landowner attempted to gain vehicle access to the property
from the south/east but was unsuccessful in his negotiations with
the neighbouring landowners. He then requested that the council
grant an easement to create a driveway across the council reserve
to the north/west, adjacent to the footpath.
The council denied the request and the landowner made an
application to the Supreme Court of NSW.
case a - The case for the landowner
case b - The case for the council
I have made genuine attempts to negotiate an easement from
neighbouring properties, without success. I have correspondence to
prove this.
By the council's own admission, the local area is well
serviced with open space which is adequate for public recreation.
Granting the easement would have no effect on the public use of the
land.
I engaged a registered valuer, who set the value of the
easement at $54,000. I am offering to pay the council this sum,
which is adequate compensation.
The land I bought is zoned residential. It's in the public
interest that I be able to develop and use the land in a way that
is consistent with this zoning, which is why it's necessary
that an easement for vehicle access be granted.
The landowner was well aware when he bought the property that
it was landlocked and did not have any vehicle access.
It is against the public interest to have an easement in the
form of a permanent driveway imposed over community land.
It is not possible for the council to be adequately compensated
for the loss or disadvantage to the community arising from such an
easement.
The landowner has not made reasonable attempts to negotiate an
easement with the other neighbouring properties.
The easement is not reasonably necessary for the effective use
or development of the land.
So, which case won?
Cast your judgment below to find out
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.