• 9 October 2019

Getting the court to order an easement over an adjoining property – s88K applications

(or can I force my neighbour to give me an easement over their property so I can develop my property?)

These days owners of large blocks of land who want to realise the full potential of their land often seek to sub-divide or otherwise develop it.

These kinds of developments (as with any kind of property development) frequently come with conditions imposed by the local council. One common condition is to require an easement to be granted over the adjoining property for drainage, access and/or services. Naturally many people are reluctant to accept an easement over their property to assist their neighbour's desire to develop their property at their expense. Often this is because they are concerned about a loss in value to their land and the inconvenience and potential damage to their property caused by the building works.

Fortunately, your neighbour's refusal to grant an easement is not the end of the story. The court has a discretion to impose an easement in certain circumstances under s 88K of the Conveyancing Act 1919 (NSW).

s88K(1) provides: "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."

Imposing an easement is not something the Court does lightly and it will only consider doing so after you have exhausted all attempts to obtain the easement by agreement. ss88K (2), (4) and (5) set out certain requirements that must be satisfied before the court will consider imposing an 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.
• (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
• (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary."

What do you need to do?

There are 4 main things you need to do to meet the conditions precedent to the court exercising its discretion to impose and easement:

• 1. Show that the easement is reasonably necessary for the use or development of the land – you need to have explored all of the alternative options to the proposed easement and have a good explanation as to why those options should not be pursued over the proposed easement, a development consent with a condition imposing the easement by the council will assist;
• 2. Exhaust all attempts to negotiate with your neighbour – Your neighbour must be informed of the precise terms and conditions of the easement. Keep a meticulous record of your negotiations and attempts to contact them. Act courteously and reasonably at all times. Make every effort to find a solution to all concerns raised by your neighbour – such as, agreeing to restore the landscaping to the condition it was in before any work was done, replacing grass, plants, repainting etc. Bear in mind that every piece of correspondence you have with them is likely to end up before the court;
• 3. Offer your neighbour compensation for the loss of the exclusive use of the part of their land that will be affected by the easement – have it valued and err on the side of being generous with the amount you offer (it will be markedly cheaper to offer more than the valuation than to run legal proceedings);
• 4. Demonstrate to the court that the proposed development is not inconsistent with the public good – again, this will be greatly assisted by a development consent from the council.

If having done all these things, you still have not secured agreement to the easement, then you may be left with no option but to approach the court to exercise its discretion to impose one. Once you get to this stage, you need to be aware that the whole of the legal costs of such an application, unless there are exceptional circumstances, will be paid by you, including your neighbour's legal costs. For this reason, offering a generous amount of compensation to your neighbour will always be cheaper for you than incurring the legal costs of the proceedings.

Ultimately, the imposition of an easement by the court is a matter of discretion once all the above criteria have been satisfied. That said, it is not uncommon for an easement to be imposed and it is worth exploring if it is the only hurdle to your proposed development progressing.

If you are in negotiations over an easement with your neighbour either as the developer or the neighbour on whom the easement is sought to be imposed and would like advice on how to achieve the best outcome, please contact Fiona Henderson at fiona@acornlawyers.com.au or on (02) 4226 5711.

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