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Power of Land and Environment Court of New South Wales to create easements – Environmental Law

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In Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC
108 (Alramon case), the Land and
Environment Court of New South Wales recently considered an appeal
against the refusal by Council of a development application for a
childcare centre, whereby the Applicant sought to rely on access to
the neighbouring Council car park and the granting of an easement
under section 88K of the Conveyancing Act 1919 (NSW) in
the form of a right of carriageway for traffic arising from the
childcare centre.

Power of the Court to create an easement

Under section 40 of the Land and Environment Court Act
(NSW) if an appeal under the Environmental Planning
and Assessment Act 1979
(NSW) with respect to the granting or
modification of a development consent is pending before the Court
an appellant may make an application to the Court for an order
imposing an easement over land and the Court may exercise the
jurisdiction of the Supreme Court under section 88K of the
Conveyancing Act 1919 (NSW), which identifies the power of
a court to create an easement.

The structure of section 88K raises the following threshold
issues for determination by the Court:

  1. Is the easement over land reasonably necessary for:

  2. the effective use; or

  3. development;

of other land that will have the benefit of the easement;

  • Is the Court satisfied that the use of the land having the
    benefit of the easement will not be inconsistent with the public
    interest; and

  • Is the Court satisfied that the owner of the burdened land and
    each person having a registered estate or interest in that land can
    be adequately compensated for any loss or other disadvantage that
    will arise from the imposition of the easement; and

  • Is the Court satisfied that 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.

Once the applicant has cleared those hurdles, the Court retains
a discretion whether or not to grant the easement. That discretion
must be exercised having regard to the purpose of section 88K
“.facilitating the reasonable development of land whilst
ensuring that just compensation be paid for any erosion of private
property rights [Second Reading Speech, Legislative Council, 4
December 1995].

In Alramon case, Pain J after dismissing the appeal
against the refusal by Council of the development application held
that the applicant also failed to satisfy the onus of establishing
that an order granting an easement under section 88K ought to be
made for reasons that included:

  • Reasonable necessity under section 88K(1) was not

    • Easement not reasonably needed for effective use of
      Applicants’ land

Whether the easement is reasonably necessary for the effective
use of the Applicants’ land as the dominant tenement must be
considered. Unlike cases where new development was proposed for
which an easement was sought, the Applicants in Alramon
were seeking an easement to support a longstanding
specific use.

The very particular nature of the easement is important to
consider in assessing whether it is reasonably necessary for the
effective use of the Applicants’ land. The Court accepted the
Council’s submission that the effective use intended to be
facilitated by the peculiar terms of the easement was the use of
the current building on the Applicants’ land, rather than the
land per se. As the Council submitted if the current building were
demolished the need for the easement as proposed was not apparent.
The use supported by an easement must not be related to a
particular owner. The application was for an easement which
peculiarly suited the current owner of the dominant tenement. This
finding was arguably fatal to the application as the Applicants had
not demonstrated reasonable necessity in relation to the effective
use of their land, in contrast to the building on it, which s
88K(1) is directed to.

  • Two way vehicle access to Coxs Road within Applicants’
    land tenable

Whether there is alternative access to give effect to the use of
land must be considered. The evidence supported a finding that the
Applicants have a preference to continue to use the current exit
arrangements onto the Council land as that enables use of the
existing building. As the Council submitted, while absolute
necessity need not be demonstrated, more than a preference for a
particular access must be established. In Alramon
, the evidence did not support a finding that the easement
was reasonably necessary for the Applicants’ use of their land
as required by section 88K(1).

  • Long standing use of Council land insufficient

The Applicants relied on the longstanding use of the Council
land including pursuant to conditions in the three development
consents granted in 1985, 1986 and 2001. Longstanding use alone
does not satisfy reasonable necessity, all relevant circumstances
must be considered.

  • Substantial burden on servient land

The greater the burden on the servient land the less likely the
finding that the easement is reasonably necessary. In Alramon
, Pain J considered that the peculiar terms of the
easement alone would be a burden on the Council. Furthermore, that
the burden is significant was supported by the Council’s
evidence that dealt with the substantial burden imposed on the
Council in relation to future development of its land. If the
effect of the imposition of an easement is to effectively preclude
a reasonably available development or use of the servient tenement
appropriate to that land, then it would require a strong case of
reasonable necessity before the easement would be imposed. Such a
case was not established by the Applicants.

  • Adequate compensation under section 88K(2)(b) not able
    to be provided

The next issue to arise was whether the Council as servient
owner can be adequately compensated for any loss or other
disadvantage that will arise from the imposition of the easement as
provided by s 88K(2)(b). As there was a reasonable likelihood of
the Council deciding to develop its land in the foreseeable future,
and the imposition of the easement would convert the Council’s
land into a thoroughfare for users of the Applicants’ land, the
Council could not be adequately compensated for the proposed
easement as required by section 88K(2)(b).

  • Reasonable attempts under section 88K(2)(c) not

The requirement of reasonable attempts is a matter of degree and
will generally be satisfied if negotiations have proved fruitless
and it is extremely unlikely that further negotiations will produce
a consensus in the reasonably foreseeable future. Whether section
88K(2)(c) has been complied with depends on the approach taken to
or an easement having the same effect“. There
was no evidence that the Applicants sought to obtain any other
easement from any other neighbour or any different easement from
the Council over the Council land. If the easement over the
alternative land would have the same effect as the proposed
easement then the applicant is obliged to seek and make all
reasonable attempts to obtain the alternative easement. In
Alramon case, Pain J considered that reasonable attempts
to obtain an easement having the same effect had not been made by
the Applicants.

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