Barrister and mediator Sydney Jacobs talks about Sec 88 K Conveyancing Act (NSW) which allows a court to impose an easement.
Readers of this column would likely be familiar with Sec 88 K Conveyancing Act (NSW), which allows a Court to impose an easement e.g. for stormwater/ sewerage & other services / access / carriageway/ rock anchors / crane swing etc , so as to burden Blackacre, where that is “reasonably necessary” for the effective use or development of Whiteacre.
Some might say that the phrase “reasonably necessary” is an oxymoron, but it has a long pedigree in the common law. For those who wish a refresher on the general principles, I have presented various papers over the years on this section, based on my own cases: these cases & seminar papers are available on my websites:
https://13wentworth.com.au/barrister/sydney-jacobs/
and
https://www.sydneyjacobs.com.au/seminar-history/
There are analogous sections in the Queensland and Tasmanian legislation.
In this note, I trace a broad trend I see developing in Sec 88 K litigation, viz that judges require the parties to either agree upon the terms of the easement (subject to resolution of other matters e.g. reasonable necessity, compensation and the like) alternatively, for there to be sufficient findings of fact so that the court knows what terms to order, prior to any adjudication upon whether an easement is reasonably necessary.
Concerns articulated by various Judges include:
(i) until the terms of the proposed easement are formulated with sufficient precision, a court will not be in a position to decide whether the proposed easement is “reasonably necessary”;
(ii) in deciding what is reasonably necessary, the court may well have to “take into account a range of variables, including competing proposals from the parties. The court may not always have before it the final terms of the easement under consideration. But the court must at least be able to formulate with reasonable precision the substance of any terms of the proposed easement that have a material bearing on the question posed by s 88K (1) of the Conveyancing Act. In the absence of such a formulation, it is unlikely that the court can properly assess the impact of the proposed easement on the use and enjoyment of the servient tenement ………………..”
(iii) when it comes to easements for carriageway, the details that courts expect to be provided include “any restrictions to be imposed on the right to use the carriageway and any obligation of the owner of the dominant tenement to carry out works in the servient tenement to improve or maintain the carriageway. Equally it is to be expected that a party putting forward an alternative proposal will include the precise terms of the proposed easement. ………………”
Extracts from the judgment of the hon Mr Justice Robson at [178] of Acorp Development v HWR Pty Ltd [2018] NSWLEC 68.
Conclusion
Be sketchy! Instead of entertaining tsunami’s of emotion from your client, the owner of Whiteacre, about how terribly unreasonable the owners of Blackacre are being by rejecting their perfectly reasonable entreaties for an easement, rather spend time on two much more useful activities:
FIRST Draft a sketch showing relevant boundaries, topography and what is sought.
SECOND Curate proposed terms
Doing this at an early stage will be a sound steppingstone to visualising what is sought, mapping out (literally and metaphorically) how best to achieve that, having proper regard for the rights of others; and communicating that to the Court and ones’ opposing professional colleagues.
*The usual caveats to seminar papers apply, as noted on my website.
Sydney Jacobs obtained his Masters Degree in Law from Cambridge and practices in the areas of commercial / equity including real property , partnership disputes and building and construction law. Many contracts he is called to advise on, have mediation / arbitration clauses.
He has acquired in -depth experience in the area of property law including eg sales of property “off the plan”, challenging notices to complete, issuing notices to perform, obtaining easements via applications under Sec 88 K of the NSW Conveyancing Act , advising and drafting papers in applications to remove easements as being obsolete and seeking interim and permanent injunctions against interference with easements. His arbitration experience includes being a NSW Bar accredited arbitrator, appearing in arbitrations and technical references, and being part -author of what is understood to be the definitive loose -leaf arbitration service in Australia, published by ThomsonReuters.
He is the sole author of two other major services for ThomsonReuters , Commercial Damages and Injunctions: Law & Practice
Prior to being called to the Bar, Sydney was a commercial litigator with a construction law focus, at a Minter Ellison and Deacons James & Graham (now Norton Fullbright).
For a full list of his cases, articles and Thomson Reuters publications , feel free to view
You may connect with Sydney via email sjacobs@13wentworth.com.au or LinkedIn
Disclaimer: The statements, analyses, opinions and conclusions in Legalwise Insights are those of the respective authors and not of Legalwise Seminars Pty Ltd which acts only in the capacity as editorial co-ordinator of the content in Legalwise Insights. No part of any article can be regarded as legal or financial advice. Although all care has been taken in the preparation of all articles, readers must not alter their position or refrain from doing so in reliance on any information contained therein. Neither the respective authors nor Legalwise Seminars Pty Ltd accept or undertake any duty of care relating to any part of Legalwise Insights.
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