Easements are a right to cross or otherwise use someone else’s land for a specified purpose. Applications for an easement under s88K of the Conveyancing Act 1919 will usually be heard by the NSW Supreme Court. However, the Land and Environment Court has “additional powers” to agree an easement if:
(1) the Court has determined to grant or modify a development consent; or
(2) where such an appeal is pending.
The assessment requires determination of whether the proposed easement is “reasonably necessary.” The applicable principles were recently considered in ATB Morton Pty Ltd v Community Association DP270447 (No2) (2018) NSWLEC 87.
The parties are neighbouring landowners of industrial land in Hexham, a suburb of Newcastle, NSW. In brief, ATB Morton applied for development consent because of access issues for its trucks. The Community Association opposed ATB Morton's application, and the local council refused it. ATB Morton appealed and while these particular proceedings were pending it sought separate proceedings in the Land and Environment Court seeking an easement over the Community Association's land, which the Court granted in August 2018. The Community Association appealed, but this was dismissed by the Court of Appeal (Community Association DP270447 v ATB Morton Pty Ltd (2019) NSWCA 83).
Section 88K was inserted into the Conveyancing Act 1919 (NSW) in 1995 empowering the Supreme Court to make an order imposing an easement over land if it is "reasonably necessary for the effective use or development of other land that will have the benefit of the easement." The power to create easements contained in s40 of the Land and Environment Court Act 1979 (NSW) predates s88K's enactment but initially was confined to drainage easements. This restriction was removed in 2002.
These cases illustrate a further aspect of the powers of the Land and Environment Court.
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