By Ian Neil and Ben Swain
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 1979 (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:
- Is the easement over land reasonably necessary for the effective use, or development, of other land that will have the benefit of the easement; and
- 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]…”.
Reasons why the Court did not grant the easement
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 established
- 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 case 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 case, 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 case, 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 made
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.
As preconditions which were required to be satisfied had not be met by the Applicants the easement could not be granted by the Land and Environment Court.
McCarthy Durie Lawyers welcomes Ben Swain, Special Counsel with over 15 years experience advising and acting for local councils, developers and private citizens in planning, environmental and local government law throughout NSW. Ben has appeared as a prosecutor for local councils, advocate or instructing solicitor in a broad range of environment, planning & protection appeals; judicial review & civil enforcement proceedings; and criminal prosecutions for breaches of planning, environmental and local government law. Please feel free to contact Ben for any queries regarding development or local council matters in NSW.
At McCarthy Durie Lawyers we advocate for our clients fairly and professionally and have a long track record of successfully negotiated outcomes.
