Posted on November 25, 2020 by Sue Puckeridge 11

Easements over Public Land

Section 88K of the Conveyancing Act 1919 (‘s88K‘) enables the Supreme Court to grant an easement over land in circumstances where such an easement is reasonably necessary for the effective use or development of the land which is to have the benefit of the easement.

The Courts are generally reluctant to impose easements over public land as to do so would be inconsistent with the public interest to achieve the purposes for which the land was held.  Nevertheless, they have been prepared to do so in certain circumstances, even where the Council did not have the power to do so under the Local Government Act 1993 (‘LG Act‘).  A recent Court of Appeal (‘Court‘) has considered the extent of the power under s88K and raises real doubt as to whether previous cases are correct.

Facts

In Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council [2020] NSWCA 292, the Court of Appeal heard an appeal from a decision of the Land and Environment Court.

Aussie Skips operates a waste recycling business. Its predecessors had built an acoustic wall along the boundary of their land which encroached onto a narrow strip of land owned by the Council.  This land adjoined a stormwater drainage channel and is public land which is classified as ‘community land’ under the LG Act.  The acoustic wall resulted in 341 m² of Council’s land being incorporated into the land occupied by Aussie Skips.

The Council had commenced enforcement proceedings to cease the occupation of the community land.  Aussie Skips subsequently commenced proceedings relying on s88K  seeking the imposition of 4 easements:

• easement for encroaching structure to remain;
• easement for services;
• right of carriageway;
• easement for access and use for waste transfer and recycling facility.

The easements were to be for a 30 year period or until the waste transfer and recycling facility ceased operating.

The Land and Environment Court refused the application for the 4 easements. Aussie Skips appealed to the Court. The Court dismissed the appeal.

General Power under s88K

The Court agreed with the primary judge that Section 88K only permits the grant of an easement that is understood by the general law. The effect of the easements being sought was to give the appellants the “wholesale occupation” of the community land to the exclusion of the Council.  The two could not co-exist.  As a matter of degree, the land which was to be included in the easement was ‘an appropriation of a larger part of the Council’s lot for the appellants’ commercial benefit’  and not an easement.

Reasonably Necessary

For the Court to be empowered to grant an easement it must be satisfied that the easement is ‘reasonably necessary for the effective use or development of land‘.

On the evidence, the easements sought were not.

The test involves more than ‘mere convenience‘.  No evidence was adduced as to the extent to which the current unauthorised use of the Council’s land was more desirable than only using the land occupied by Aussie Skips.  Consequently, the Court was unable to assess whether the use of this  land was constrained.

Further, the inconvenience and cost of removing the wall and difficulties with reconfiguring the buildings and placement of stockpiles to permit 19 metre trucks with trailers to maneouvre on the land arose, not from a need, but a desire to continue to take advantage of a set of circumstances.

Power to grant the Easements over Public Land

Importantly, the Court raised doubt that previous decisions which have held that the Supreme Court had the power to grant an easement over community land given that local councils themselves do not have the power under the LG Act.

In  Marshall v The Council of the City of Wollongong [2000] NSWSC 137, the Supreme Court was of the opinion that the limitations in dealing with public land under the  LG Act did not affect the Court’s powers under s88K and those limitations were relevant to the issue of the Court’s discretion to make orders under that section.

In City of Canterbury v Saad [2013] NSWCA 251, the Court concluded that an easement over public land was not inconsistent with the public interest as there was no evidence that an easement over a small part of a public park would have an adverse impact on the use of that park by the public.

However, in this case Basten JA (with whom Preston AJA and Gleeson JA agreed), while not determining the point, raised real doubt as to whether the power to grant to an easement under s88K exists and cited 4 concerns:

• The Council has no power under the LG Act to grant easements and for the Court to do so would undermine the purpose and operation of the statutory scheme under the LG Act.  The LG Act and the Conveyancing Act should be read harmoniously together;
• Section 88K only permits the grant of an easement if all reasonable attempts have been made by the applicant for an order to obtain the easement or an easement having the same effect, but have been unsuccessful. This requirement implies that the owner of the land over which the easement is sought has the legal capacity to grant to easement.  This is not the case where the land is community land;
• Section 88K(6)(b) permits an easement imposed by the Court to be modified by a deed between respective landowners.  Again this provision implies that the Council has the power to enter into such a deed, which under the LG Act it does not;
• Section 88K(8) provides that the easement has effect as if it were contained in a deed.  This would create a curious anomaly if one party did not have the power to enter into the deed.

Implications

In the course of redeveloping land adjoining public land, on occasion developers may seek an easement for access, drainage or other purposes over the public land.  Depending upon the extent of the easement and its impact on the use of the public land, the Council may have been willing to take a neutral position if a developer was to make an application for an easement under s88K.  The likely success of such an application is now in doubt. Developers and consent authorities will need to consider development applications which rely on the grant of s88K easements in light of this case.

If you would like to discuss this blog, please leave a comment or call Sue Puckeridge, Partner on (02) 8235 9702.