What are recent cases telling us about how courts approach easement applications? What factors do courts consider when assessing Section 88K applications? What are the cost implications under Section 88K(5), and how do you navigate them? When should you push ahead with litigation, and when is it better to negotiate a settlement? Take a deep dive into the case law on Section 88K of the Conveyancing Act, focusing on when and how courts are willing to impose easements in favour of a landowner.
Thursday, 21 August 2025
Chair:
Kim Boettcher, Barrister, Frederick Jordan Chambers
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Description
Attend and earn 1 CPD unit in Substantive Law
This program is based on NSW, QLD, TAS, NT legislation
1.00pm to 2.00pm Easements Under Section 88K in Focus: Trends, Risks and Strategic Use
Section 88K allows an applicant to seek an order from the Court for the imposition of an easement if it is necessary for the effective use or development of the applicant’s land.
A typical situation is where a Council has issued Development Consent but imposed a condition that, before work begins, an easement for stormwater drainage or access must be obtained. This is the intersection of planning and property law. Of course, there are many other situations where an easement may be necessary - for example, to establish a bushfire protection zone, or to gain access to a boat shed or garden for recreation. Even a temporary easement might be required, such as for crane swing.
There is now a good body of case law on the general principles of these applications, including the courts’ approach to Section 88K(5), which provides that an applicant for an order for easement pays the costs of the other side unless the court orders otherwise.
So it’s time to step back, zoom out, and look at two “big picture” issues and what they mean for your clients and how you handle these cases.
- Trends: In what general circumstances will courts look sympathetically on Section 88K applications? And vice versa.
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Deploying knowledge of these trends to collegiately convey to the solicitor for “the other side” that, despite the sting in the tail of Section 88K(5) for applicants, litigation would not be risk-free for the prospective defendant; and as such, it is worthwhile entertaining a negotiated outcome.
This seminar will be imperative for property and conveyancing practitioners in NSW, including those working in the Supreme Court and the Land and Environment (L & E) Court. It will also be relevant for practitioners in jurisdictions with laws similar to NSW’s Section 88K, such as Queensland, the Northern Territory, and Tasmania. Their equivalent legislation includes:
- Section 180, Property Law Act 1974 (Qld)
- Sections 163–165, Law of Property Act 2000 (NT) — Statutory Rights of User
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Section 84J, Conveyancing and Law of Property Act 1884 (Tas) — Statutory Rights of User
Presented by Sydney Jacobs, Barrister, Thirteen Wentworth
Presenters
Sydney Jacobs, Barrister, Thirteen Wentworth
Sydney Jacobs is a barrister at 13 Wentworth Chambers and an accredited mediator, with additional credentials as a BarADR-accredited arbitrator and expert determiner. An LL.M graduate from Cambridge, Sydney maintains a dynamic commercial equity practice, with a strong focus on litigation and advisory work across property, partnership, corporate law, building and construction, and strata disputes. He brings particular expertise to easement and covenant disputes, including matters involving both Torrens and Old System land. He is regularly briefed in leasing disputes, off-the-plan contracts, rescission, termination, specific performance, relief against forfeiture, and the recovery of deposits. His practice also covers restraint of trade, and disputes involving options, rights of first refusal, and notices to perform or complete. Sydney was, for 20 years, the sole author of Commercial Damages and Injunctions: Law and Practice, and a contributor to Commercial & International Arbitration (all published by Thomson Reuters). His practice is informed by this foundation of academic rigour, and a commitment to practical, outcome-focused advocacy. Outside of work, Sydney enjoys time with family, competing in tennis, snowboarding, multi-day hikes, photography, and exploring the arts.
Kim Boettcher, Barrister, Frederick Jordan Chambers
Kim is a Barrister at Frederick Jordan Chambers in Sydney. Kim practises in Equity, Common Law, Protective and Guardianship Law, and in the Probate and Succession List. Prior to coming to the Bar, she practised as a Solicitor in commercial and civil litigation law in England and Wales, New South Wales and Queensland. More recently, she was a Solicitor at the Seniors Rights Service, an independent legal centre and regularly attended the UN Open-ended Working Group on Ageing in New York as a civil society representative. Kim was appointed to the NSW Minister of Fair Trading's Retirement Villages Advisory Council in 2013 and also to the Minister's Expert Committee on Retirement Villages Standard Contract Terms and Disclosure Documents in 2011. Kim was a Member of the inaugural Legal Services Council in 2014 and reappointed from 2017-2020. She is a past Treasurer of the International Commission of Jurists Australia and was appointed to the NSW Bar Association’s Succession and Protective Law Committee in 2021, 2022 and 2023.
