Assisted by Jason Vo

If a person is unable to negotiate an easement with their neighbour, section 88K of the Conveyancing Act 1919 (NSW) provides a mechanism to forcefully create an easement even against the neighbour’s wishes by application to the court. With the increase in population density in NSW and especially Greater Sydney, we predict applications for forced easements will become more and more common. In this blog, we explain and review the criteria for a successful ‘section 88K application’ and look at a recent case where a court imposed such an easement.

A growing trend…

There is already a trend showing an increase in the incidence of people resorting to section 88K. There were few references to section 88K in the case law in the early 2000’s, however this has increased over the years, 2016 and up to 2018. Some common easements related to development include for rights of carriageway, easements for crane swing and scaffolding easements.

Legislative framework

Section 88K sets out when a court may make an order imposing an easement over land. The criteria or grounds for a successful application may be summarised as follows:

• the easement is “reasonably necessary for the effective use or development of other land”;
• the “use of the land having the benefit of the easement will not be inconsistent with the public interest”;
• the “owner of the land to be burdened… and each other person having an estate or interest in that… can be adequately compensated for any loss or other disadvantage”; and,
• “all reasonable attempts” have been made by the applicant to obtain the easement by agreement but without success.

In an order granting an easement, the court must clearly specify:

• the nature and terms of the easement, including by reference to a plan, and may limit the times at which the easement applies; and,
• the amount of compensation to be paid, unless none because of “special circumstances”.

The case law clarifies that the compensation to be paid is calculated by reference to the loss incurred by the owner of the burdened land), and not the benefit derived by the other owner (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010)). The loss may include “insecurity, loss of amenities such as loss of peace and quiet” (Wengarin Pty Ltd v Byron Shire Council (1999)).

What is meant by “all reasonable attempts”?

Before commencing a section 88K application then, a party will want to know more about what constitutes taking “all reasonable attempts” to obtain the easement by agreement. It’s likely that the applicant will need to first:

• disclose all the terms of the easement sought;
• give the owner of the burdened land an opportunity to consider their position; and,
• negotiate until it is extremely unlikely that agreement will be reached in the foreseeable future.

In Bilton v Ligdas, the court held that rejection of an offer of compensation “at least double the maximum amount as assessed by the expert” would satisfy this threshold.

However, applicants should be wary that courts have taken a broad view of the time for which negotiations between the parties are relevant, and have effectively held that an applicant should continue being open to negotiations in the time between lodging their section 88K application and the court’s final decision (Goodwin v Yee Holdings Pty Ltd).

A recent example: Gordon v Lever (2019)

In Gordon v Lever, the appellants (the Gordons) and the respondents (the Levers) owned neighbouring properties adjacent to the Richmond River. For many years, the Gordons accessed their property through the Levers’ land, until a bridge therein washed away in December 2015. Following this, the only means of accessing the Gordons’ land was by crossing the Richmond River over a ford, however, this was not possible or safe at certain times of the year.

Additionally, the ford was Crown land, and its use was not legally permitted under the Crown Land Management Act 2016 (NSW). The Gordons applied for an easement over the Levers’ land, following the route which had been used previously, including for construction of a new bridge. The initial judge ordered the creation of an easement for a right of carriageway, enforcing terms which limited the period during which persons (other than emergency vehicles) could use the easement, namely, to when the river at the ford was 300mm or more deep. The Gordons appealed.

The Court of Appeal ultimately held that:

• there should not have been any limitations as to the time of use as the easement was “reasonably necessary” for effective use of the Gordon’s land at all times;
• use of the alternative Crown land route involved a trespass; and,
• even if the alternative route did not involve trespass, the restrictions imposed on the use of the easement were not practically or legally workable, because:
• they required an assessment to be made by would-be users of the height of the river crossing where that could not be readily measured, including both regular users and other visitors eg. making deliveries, guests etc.; and,
• persons on foot may be required to wade through water unless the river was completely dry.

The case is a good demonstration of one set of circumstances wherein an easement is “reasonably necessary” for effective development of land and an easement was created against an owner’s wishes.

If you need assistance or advice in relation to an easement with a neighbouring property or any of the issues discussed above, please do not hesitate to get in touch with a lawyer in Coleman Greig’s Commercial Property team.