Forced Easements In NSW: Section 88K Of The Conveyancing Act
Gone are the days when the old saying “A man’s home is his castle” held true. These days, the amount of legislation regulating how we are able to use our land is overwhelming. When it comes to planning and development, public authorities such as local councils have almost unlimited rights to impose on our pockets of land. The government also can intrude on our land at will, and in some cases, even take it from us. Recently, these laws and regulations have multiplied due to increasing urban development. In many of these cases, the rights of the community have prevailed over the rights of individual landowners.
Living in an urban community, it’s not uncommon for a neighbour to need to access their neighbour’s adjoining land. For example, they might want to run a pipe to a water source, or perhaps run another for drainage purposes. They may even need to drive through a section of their neighbour’s property to be able to access their own. Historically, if this happened, the neighbour (the dominant tenement) needed to negotiate with the adjoining land owner (the servient tenement) to come to an agreement about access and use. This happened through the registration of the Grant of an Easement. The document granting the easement defined the location where access was needed, for example, the access road or line the water pipes would follow. It formally set out the rights of the parties in detail. The easement was then registered. Depending upon the degree of intrusion into the rights of the servient tenement, an amount of monetary compensation would also be agreed upon. Usually the dominant owner would pay all the costs of implementing the agreement too.
However, increased urbanisation and industrialisation have rendered the old ways inadequate, especially with the increase in the complexity of land usage and creation of smaller lots. Adjoining owners may still agree, but circumstances do arise where agreement cannot be reached.
Parliament had to step in to provide a mechanism for the resolution of these sorts of disputes. There have been cases where someone living near a proposed development site required rights over neighbouring land to achieve the objectives of the development. They then had to demonstrate that the creation of an easement was reasonably necessary for the effective use or development of the land and that it would have the benefit of the easement.
The legislation parliament put in place to solve these dilemmas is found in Section 88K of the Conveyancing Act 1919 (New South Wales). It grants the Supreme Court the power to make an order imposing an easement if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. However, there are conditions which must be satisfied before the Court will exercise the power. They are:
- the use of the land benefitting from the easement will not adversely impact the public interest
- it must be possible for the owner of the land burdened by the easement (and any other person with a registered interest in that land) to be adequately compensated for any loss or other disadvantage that will arise from the placing of the easement
- the Court must be satisfied that all reasonable attempts have been made by the applicant to obtain the easement
If the Court decides to grant the easement, it must specify the terms of the easement. It must also identify the persons or bodies who have the right to release, vary or modify the easement. At this time, the Court also ensures the applicant for the easement pays any due compensation to those affected by it. The Court decides the amount of compensation it considers appropriate. Alternatively, it may determine compensation is not payable because of the special circumstances of the case. The costs of the court proceedings are usually payable by the applicant.
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Section 88K of the Conveyancing Act 1919 (New South Wales)
(1) The Court 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.
(2) Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) 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.