Article by John Taberner and Phillip Rattenbury
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 that:
- 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 easement.
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 that finding.
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 necessity.
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.