When will an application to Court for an easement be successful?
If a person is unable to negotiate an easement with their neighbor, 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.
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.
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 summarized as follows:
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:
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 by crossing 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 Lever’s land, following the route which had been used previously, including for construction of a new bridge.
The Court of Appeal ultimately held that:
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.
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