August 2012

Imposing an easement over community land: The Supreme Court orders favourably

In the recent decision of Saad v City of Canterbury Council [2012] NSWSC 389, the Supreme Court of New South Wales considered an application for an order under section 88K of the Conveyancing Act 1919 imposing a right of carriageway over a public park owned by Canterbury Council for the benefit of privately owned land.

Mr Saad owns a parcel of undeveloped land at Earlwood (land).  The land was zoned residential 2(a) pursuant to the Canterbury Planning Scheme Ordinance (PSO) and was landlocked by neighbouring privately owned properties and by Heynes Reserve.  Heynes Reserve was zoned open space pursuant to the PSO and was classified as “community land” and also categorised as park under the Local Government Act 1993.

Mr Saad entered into negotiations with his neighbours to obtain access to the land over their properties, but was unsuccessful.  He then sought the consent of the Council to obtain an easement over Heynes Reserve.  Council refused that request on the basis that it lacked the power to create such an easement because Heynes Reserve was community land.  As a result, Mr Saad applied to the Supreme Court to impose a section 88K easement.

Although councils lack power under the Local Government Act to grant such rights of carriageway over community land, section 88K of the Conveyancing Act does not prevent the Court from ordering the imposition of easements over community land.

What are the key requirements of section 88K?

The Court may only make an order under section 88K if the easement is reasonably necessary for the effective use or development of the land to be benefited by the easement and if the Court is satisfied that:

  • 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 by the easement (and each person having a registered interest in that land) can be adequately compensated for any loss or disadvantage arising from the imposition of the easement; and

  • all reasonable attempts have been made by the applicant to obtain the easement having the same effect, but have been unsuccessful.

Were the key requirements of section 88K satisfied?

Is the easement over Heynes Reserve reasonably necessary for the effective use or development of Mr Saad’s land?

Yes.  Although Mr Saad’s land was zoned “residential 2(a)” pursuant to the PSO, the Court noted that it was landlocked and could not be effectively developed for the purpose of a dwelling unless the proposed easement was created.  The Court held that the easement was reasonably necessary as the intended development for the purpose of a dwelling could not be carried out, and would be impossible, unless and until adequate vehicular access had been provided, and that the proposed easement was the only realistic solution available for the effective development for the purposes of a dwelling.

The Court took into account the land over which the easement was proposed was a very small part of Heynes Reserve and that any impediment to the public’s use and enjoyment of that land would be minimal.  Further, the Court considered that any adverse impact would be limited because the development application for the design of the driveway would be assessed by Council in its capacity as the consent authority.

Will the use of Mr Saad’s land be inconsistent with the public interest?

No.  The Court noted that the proper construction of this requirement is to consider the use of the land benefited by the easement, not the use of the land burdened by the easement.

In enacting section 88K, Parliament recognised that the private development of land may be beneficial and in the public interest.  In Mr Saad’s case, the Minister had amended the PSO in 2006 to recognise that the land was landlocked and any development on it should be subject to satisfactory access arrangements being made.  On this basis, the Court held that an easement over Heynes Reserve permitting vehicular access to the land was entirely consistent with the public interest in the use or development of the land for its designated purpose.

Could the City of Canterbury be adequately compensated?

Yes.  The Court considered that the loss or disadvantage would be the loss of the use of the portion of Heynes Reserve where the site of the driveway was proposed.  Such loss could be adequately compensated by Mr Saad paying to the Council a monetary sum equivalent to the value of the land which would be effectively lost to the Council.
Further, the Court had regard to the circumstances in which the Council initially declined to purchase the land from the previous owner, the then RTA, and in which the PSO was amended to enable development for the purposes of a dwelling house subject to Council being satisfied that that development provides for adequate vehicular access to the land.  On that basis, the Court was satisfied that the Council could be adequately compensated.

Had Mr Saad made all reasonable attempts to obtain the easement?

Yes.  The Court considered that Mr Saad’s negotiations with his neighbouring land owners and the Council amounted to reasonable, but unsuccessful, attempts to obtain access to the land by way of an easement.

The Court’s discretion to order imposition of an easement

The power of the Court to order the imposition of easements under section 88K is discretionary.  Even if the Court is satisfied that the key requirements of section 88K have been met, the Court is not obliged to order the imposition of an easement.

In considering whether to exercise its discretion, the Court held that it never makes an order under section 88K “lightly” and that it must be “particularly cautious” when the land to be burdened by the proposed easement is community land because:

  • such land has been designated as being retained for the benefit of the public for the indefinite future; and

  • its appropriation for private use by recourse to section 88K “must be jealously scrutinised”.

Given the circumstances of this case, the Court determined that the fact that the land to be burdened by the proposed easement was community land should not weigh against the making of an order imposing the easement.

For all of the above reasons, the Court held that the key requirements of section 88K had been met and that it would in principle make an order granting an easement in favour of Mr Saad’s land. 

However, as it was necessary for Mr Saad to obtain the Council’s approval to a development application for the proposed easement, the Court considered it inappropriate, at that stage, to make an order under section 88K(3) specifying the terms of the easement but noted that “to enable finalisation of the proceedings, it was desirable that the process be completed without delay”.

Implications of this case for Councils?

The Court considered carefully the key requirements within section 88K and determined they had been met.  The case highlights the potential conflict that exists between section 45 of the Local Government Act 1993 which precludes Council from dealing with or disposing of community land, and section 88K.

In considering the circumstances, the Court was satisfied that it was appropriate to make an order for the imposition of  the easement sought, subject to the obtaining of all necessary development consents pursuant to the Environmental Planning and Assessment Act 1979, notwithstanding the restrictions that are otherwise imposed pursuant to section 45 of the Local Government Act 1993.

The case highlights the need to approach any dealings with community land cautiously.  In particular, it highlights limitations on the power exercisable by councils to create easements over community land, and the ability of people in situations similar to Mr Saad’s to obtain such easements by Court order.

Authors: Peter Barakate & Dennis Loether

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