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Land and Environment Court rejects application for easement over community land

31 March 2020

6 min read

#Planning, Environment & Sustainability

Published by:

Georgia Appleby

Land and Environment Court rejects application for easement over community land

The Land and Environment Court (Court) has recently struck down an application for easements which would effectively authorise the expansion of its waste transfer facility onto neighbouring community land owned by Strathfield Municipal Council (Council).

The proceedings were commenced under section 88K of the Conveyancing Act 1919 (NSW) which gives the Court powers to grant easements over land where the easement is “reasonably necessary” for the effective use or development of the land benefitted by the easement.

Holding Redlich acted on behalf of the Council in these proceedings.

In previous cases, easements have been sought under section 88K where properties are landlocked and require access across a neighbouring site, or to facilitate drainage or other services to a site, for example. 

Here however, the Applicant sought, amongst other things, an easement to enable it to construct an acoustic enclosure on the easement site and use that land for the purpose of a waste transfer and recycling facility.

In finding for Council on all grounds, the Court has clarified the key elements that must be satisfied in an 88K application, including whether what is being sought is an easement, what is required to prove reasonable necessity and who bares the onus, and how impacts on the burdened land are to be assessed.

Is it an easement known at law?

A key issue for the Applicant was establishing that the easements sought by it were in fact easements known at law – meaning that they were actually easements capable of being granted by the Court.

This effectively requires the Court to consider whether the rights granted under the easement amount to rights of joint occupation or would essentially deprive the owner of the land of its proprietorship or legal possession.

In this case, the Applicant sought to argue that the easement site did not cover the entirety of Council’s land and therefore, Council retained full legal ownership in respect of the residue. It also suggested that because the terms of the easement afforded Council some rights of access, Council’s rights of possession over the easement land were preserved.

However, Council argued and the Court agreed that, in this case, the easements sought conferred on the Applicant an entitlement to occupy and use the easement land to the practical exclusion of the Council and that this amounted to a deprivation of its proprietorship or legal possession.

This is largely because the Applicant proposed to build an acoustic enclosure on the easement site and to use the land as part of its operational waste facility. This would physically and practically exclude Council from accessing the land for any other purpose, and notionally granting Council limited access entitlements under the easement instrument would not be sufficient to ameliorate the impacts of this deprivation.

Accordingly, the Court found that the easements were incapable of comprising easements at law.

What is required to prove reasonable necessity and who bears the onus?

The main threshold test that needs to be satisfied under section 88K is whether the easement is reasonably necessary for the effective use or development of the land benefited by the easement.

In this regard, the Court confirmed the key principles established in Rainbowforce,[1] including that reasonable necessity does not mean absolutely necessary, but that it is something close to a vital requirement.[2]

The Applicant’s central argument was that because it was currently using the easement site as part of its existing waste facility (without landowners consent and without development consent), it had established a prima facie case that the easement was reasonably necessary. As such, they suggested that they did not need to canvas whether any alternatives were available in the circumstances.

On the Applicant’s submission, establishing a prima facie case in this way was sufficient for the onus to then shift to the Council who would need to put on evidence as to viable alternatives that could negate the proposition that the easement was reasonably necessary.

Again, the Court disagreed, finding instead that the degree of evidence required to establish reasonable necessity will vary depending upon the facts of a case. However, where the basis for the claim of reasonable necessity is not obvious, an applicant will at the very least need to examine the extent to which the use can be carried out without the easement, and whether any alternatives are available.

Ultimately, the Court found that the Applicant’s forensic decision not to adduce this evidence meant that it was unable to discharge the onus.

Further, the Court emphasised that the question of reasonable necessity does not look to whether a party desires the easement or whether it is needed to maximise a particular use – rather, it is directed at whether the use of another person’s land is reasonably necessary in the circumstances.

Assessing impacts on the burdened land

The impact of the easement on the burdened land is a relevant consideration in assessing reasonable necessity.

Here, the Applicant sought to argue that the impact on the Council land was negligible because Council was not actively using the land in any real sense and therefore, little weight should be given when determining the competing uses.

Conversely, Council’s position was that it was not required to use its land in an active sense and that its passive use as a vegetation buffer was a valid consideration in the Court’s assessment. Further, Council pointed to the fact that the land is designated as “community land” under the Local Government Act 1993 (NSW), and is governed by a trust instrument which requires its use to be restricted to public garden and recreation space.

In finding for Council, the Court held that a party cannot insist on the conferral of a right over land simply because that land, in their view, is being underutilised.

Further, the fact that Council was passively using the land did not result in a finding that the impact of the imposition of the easement would be minor. Rather, the Court found that the Applicant’s proposed active use of the land (as part of its waste facility) was completely at odds with Council’s passive use and consequently, both uses were unable to coexist.

On this basis, the Court found that the impact of the easements on the Council land was significant and as such, it was necessary for the Applicant to demonstrate a greater need in order to overcome this impost.

Lessons learnt

This case is a helpful restatement of the key principles underpinning the grant of 88K easements, including:

  • the importance of formulating the proposed easement instrument in a way that the rights conferred are in fact easements known at law – this should be given careful consideration prior to commencing any proceedings under section 88K
  • it is the applicant for the easement who bears the onus of establishing reasonable necessity and that it must adduce sufficient evidence to discharge this onus. Failure to do so will mean that the application is doomed to fail
  • when assessing the impact of the easement on the burdened land, it is not sufficient to rely on the underutilisation of such land by the landowner in order to justify the imposition of the easement. This is because there is no obligation on a landowner to use its land in any active or real sense.

The judgement can be accessed in full here.  

Authors: Breellen Warry & Georgia Appleby

[1] Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd & Ors [2010] NSWLEC 2
[2] Ibid [74], [76]

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Published by:

Georgia Appleby

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