What Is Reasonably Necessary Per Section 88K Of The Conveyancing Act?
We all, in a particular context, at times use words and phrases about which we are sure there is a clear and unambiguous meaning, and it can come as a surprise when another person provides a different meaning for those same words and phrases in the same context.
The Courts are often asked to interpret documents, including legislation, and must rule on competing arguments as to the meanings that should be given to words and phrases. One example is the phrase “reasonably necessary”. These two words, when used separately, can themselves give rise to different interpretations, often based on the degree of satisfaction that should be expected in determining whether something is “reasonable” or “necessary”. When they are used together, a more complex concept is created.
The phrase as it is used in Section of the NSW Conveyancing Act 1919 has attracted judicial attention in several cases. Section 88K reads, in part:
Power of Court to Create Easements
(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:
- use of the land having the benefit of the easement will not be inconsistent with the public interest, and
- 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
- 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.
What is an Easement? Very simply, it is a right that an owner of land has over land owned by someone else, which is registered on the titles to both parcels of land, so that it becomes part of the titles and passes to successive owners of the land. The purpose of an easement is to provide a benefit to the neighbouring, dominant, land, such as an access way for people or vehicles, power lines, water pipes, sewerage services and so on. The effect of an easement on the land over which it passes, or servient land, is called the burden.
The document that creates an Easement is registered at the Land Titles Office and it sets out the location of the Easement, and details the purposes for its creation, and the conditions on which it can be used. Sometimes a Plan is registered with the Land Titles Office. Occasionally, owners cannot agree about the location or terms of a proposed Easement, and in that case the landowner seeking to have the Easement created may ask the Court for assistance under section 88K.
The scope of the Court’s power should be borne in mind by the parties during their negotiations. There is little value in pressing your argument on an issue if it is not likely that your point will find favour with a Court in the event that the issue falls to be determined by that Court. Therefore, it is advisable to have a clear understanding of the scope of the meaning of “reasonably necessary” as it applies in this context.
The Courts have considered section 88K in several cases. In Arinson Pty Limited v City of Canada Bay Council  NSWLEC 43 (24 April 2014) the jurisdiction was exercised by the Land and Environment Court of New South Wales. The judgment in that case explains the operation of the section and sets out the relevant principles comprehensively, and refers to other cases where section 88K has been considered.
Specifically on the meaning of “reasonably necessary”, in McKeand v Thomas  NSWSC 1028, Campbell J noted that reason the Court is required to assess the reasonable necessity of an Easement is that the creation of the Easement involves arbitrarily subjecting the servient tenement to the burden of the Easement, taking away rights that the owner of the dominant tenement previously enjoyed. The Judge said:
“The comparison which this element of section 88K calls for is one between the use or development of the dominant tenement which would be possible if the easement were to be granted, and the use or development of the dominant tenement which would be possible if the easement were not granted. That is a matter of fact that is decided taking into account practical considerations concerning the types of structures that are physically capable of being built on the land or types of activities that are physically capable of being carried out on the land, any legal controls on the use or development of the land, the cost of the various alternative ways the land is used or developed, and the economic viability of the alternatives for use or development. By its use of the expression ‘effective use or development’ it also involves an evaluation of the desirability of the various alternatives for use or development. By its use of the expression ‘reasonably necessary’ it involves deciding how important the grant of the proposed easement is to the various alternatives for use or development.”
Sound legal advice, with assessment of the particular facts of the matter, is advisable before any landowner commences negotiations with a neighbour in relation to obtaining the grant of an Easement. Each set of facts is different, and, when navigating the differences and nuances in various interpretations of words and phrases in the English language, expert assistance and guidance is essential.