Posted on January 17, 2022 by Stuart Simington 7

Registered easements for rock anchors

Introduction

Historically, builders and developers sought to emplace ground anchors in neighbouring property through a licence agreement with the owner of that property. Following construction, the ground anchors were de-stressed and remained in the neighbouring property.

Under the Design and Building Practitioner Act 2020 (DBP Act) construction of a class 2 building (or a mixed-use building where a part of the building is a class 2 building) now requires that a developer or builder provide evidence of a registered easement over neighbouring property granting the right to install an anchor in the neighbouring property.

This article discusses when such an easement is required and what can be done where an easement cannot be acquired by agreement between the parties.

When an easement is required

Under the DBP Act, designers and builders are now required to provide compliance declarations in respect of the design and construction of building work. Building work includes class 2 buildings and mixed-use buildings with a class 2 building component.

A registered design practitioner must provide a design compliance declaration if the design practitioner provides a regulated design: s9 DBP Act.

A builder must provide a design compliance declaration before commencing building work: cl 16 Design and Building Practitioners Regulation 2021 (DBP Regs).

On 1 July 2020, the Design and Building Practitioners – Particulars for Regulated Designs Order 2021 (Regulated Designs Order) came into effect.

Amongst other things, the Regulated Designs Order requires that if the building work involves emplacement of a ground anchor in neighbouring property, evidence of a registered easement granting the right to install an anchor on that property must be included in a ‘regulated design’.

This means that if the DBP Act applies to the building work, the builder or developer must provide evidence of a registered easement over the neighbouring property otherwise a registered design practitioner will not be able to provide a design compliance declaration as required by the DBP Act.

By operation of the DBP Act, such evidence must be provided before building work is commenced.

The Regulated Designs Order applies to all building work commencing after 1 July 2021 by operation of the transitional provisions under the DBPA, even if the designs were prepared before 1 July 2021 and even if the developer and builder had already obtained a construction certificate authorising the commencement of the building works.

It does not apply to a neighbouring public road where a consent under section 139 of the Roads Act 1993 (Roads Act) has been granted by the relevant roads authority: cl 3 Sch 2.

The Roads Act applies to all public roads in New South Wales or any road that is declared to be a public road for the purposes of the Act: s3 Roads Act.

Options if an easement cannot be obtained

In some instances it may be simpler and more cost effective to amend the design of the construction to remove the necessity of ground anchors in neighbouring property.

Where that cannot be achieved or is cost prohibitive an easement may be sought from the NSW Supreme Court pursuant to s88K of the Conveyancing Act 1919.

The NSW Land and Environment Court also has power to impose an easement if the issue arises in connection with an appeal: s 40 Land and Environment Court Act 1979.

Amongst other things, the Court can only make an order imposing an easement pursuant to s88K if the Court is satisfied that the applicant has made all reasonable attempts to obtain the easement but has been unsuccessful.

Further, the applicant bears the onus to convince the Court that the easement is “reasonably necessary” for the effective use or development of the subject site: Gordon v Lever (No 2) (2019) 101 NSWLR 427.

The concept of reasonable necessity refers to a consideration of the alternative methods by which the proposed use or development could be achieved. The requirement means something more than mere desirability or preferability over the alternative means available, but it does not mean ‘absolutely necessary’: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [154]-[159].

An example of a case in which an applicant was successful in obtaining a temporary easement for ground anchors is Twelve Walker Street Pty Ltd v Lee [2017] NSWSC 1807. In that case, the applicant sought an easement to permit subterranean access to neighbouring land for the purpose of installing, and within a 17 month period de-stressing, a series of rock anchors (about 255 in total). Amongst other things, the neighbouring land owner argued that the easement was not reasonably necessary for the effective use or development of the subject site because there were other appropriate and cost effective methods available to retain the land without the need for the rock anchors. Notably, the least costly alternative was approximately $1.5 million more expensive than the rock anchor system proposed, the latter also being probably the most reliable and safest option: at [25].

Further, the emplacement of the rock anchors had the practical effect of preventing the development of the neighbouring land during the time the rock anchors were in place (because excavation was impossible). The Court noted that this burden was substantial and that ordinarily a landowner should not be restricted in their ability to pursue the lawful development of their land: at [84].

Having regard to all of the circumstances though, the Court ordered that an easement for rock anchors should be imposed over the neighbouring land, for a term of 17 months. Compensation of $267,000 for the easement was payable to the neighbouring landowners and the applicant was ordered to pay the landowner’s costs of the proceedings. The easement provided that the rock anchors were to be de-stressed within the 17 months and, after de-stressing the redundant rock anchors would remain in situ and form part of the neighbouring property.

Conclusion

Builders and developers should be aware of the new requirements to obtain a registered easement for the emplacement of ground anchors in neighbouring land if the DBP Act applies to their development.

Early attention to this requirement will pay dividends in removing a potential roadblock early in the construction process.

Negotiations with adjoining landowners should be commenced early and reasonable compensation for the easement offered.

If all attempts at obtaining an easement are unsuccessful, builders and developers should consider the viability of alternative methods by which the proposed development could be achieved without the easement before seeking an easement through a court order.

If you wish to discuss this blog or have any questions regarding easements or other property law related issues please contact Stuart Simington on (02) 8235 9704 .