Posted on May 3, 2012 by Frances Tse

Supreme Court imposes easement over public reserve in favour of residential land

In Samy Saad v City of Canterbury [2012] NSWSC 389 the Supreme Court imposed an easement in the form of a right of way (‘ROW‘) over a council owned public reserve to facilitate access to landlocked residential land to enable the owner to erect a dwelling house.

Facts

The Applicant owned a landlocked parcel  of land (‘Lot 1‘), which was zoned ‘residential 2(a)‘ under the Canterbury Planning Scheme Ordinance (‘Ordinance‘). Lot 1 was surrounded by residential properties, and a public reserve used for public recreation purposes, which was owned by the Council and classified as community land under Chapter 6 of the Local Government Act 1993 (NSW) (‘Community Land’).

Lot 1 was previously owned by the RTA and earmarked for road widening. When the road widening proposal was abandoned, the Ordinance was amended to rezone Lot 1 to residential 2(a) and to prohibit the granting of consent to residential development unless the Council was satisfied there was adequate vehicular access to Lot 1

The RTA subsequently unsuccessfully tried to sell Lot 1 to the Council but eventually sold it to the Applicant.

The Applicant tried unsuccessfully to negotiate access arrangements to Lot 1 across the adjoining residential properties.

The Applicant was also unsuccessful in negotiations with the Council, which claimed it had no power under the Local Government Act 1993 to grant access across the Community Land.

The Applicant eventually brought proceedings in the Supreme Court seeking an order under s88K of the Conveyancing Act 1919 (NSW) for the creation of a ROW across the Community Land in favour of Lot 1, which would have an area of approximately 90m2 .

Power of Court to impose an easement

Section 88K empowers the Supreme Court to make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.

Before making such an order, the Court must be satisfied that:

• the use of the land having the benefit of the easement will not be inconsistent with the public interest,
• the owner of the land to be burdened by the easement can be adequately compensated, for any loss or other disadvantage that will arise from imposition of the easement, and
• all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

Decision

Was the ROW reasonably necessary for the effective use of Lot 1?

The Court said that:

• the decision whether to make the order under s88K involves balancing the advantage to Lot 1 against the disadvantage to the Community Land,
• the reasonableness of the proposed use of Lot 1 and the extent of the burden on the Community Land are relevant considerations,
• if use or development of Lot 1 could not be achieved without the creation and use of an easement, then the easement is reasonably necessary for such use or development to be effective.

On the facts, The Court held that the ROW was reasonably necessary for the use or development of Lot 1, having regard to the following:

• the residential zoning of Lot 1,
• development of Lot 1 for residential purposes was impossible unless and until adequate vehicular access was provided,
• if the ROW was not created, there could be no effective use or development of Lot 1 in accordance with its zoning,
• the area required for the ROW was only a small part of the Community Land and there was no evidence that the loss would have any adverse effect on the public use of the Community Land, and
• the Council had previously indicated that the surrounding area was well supplied with existing open space.

Would the use of Lot 1 be inconsistent with the public interest?

In this regard, the Court:

• emphasised that the consideration is whether the use of Lot would be inconsistent with the public interest, not whether the creation of the easement on the Community Land is inconsistent with the public interest, and
• considered that the use of Lot 1 for residential purposes was not inconsistent with the public interest because it was in the public interest to use and develop Lot 1 for residential purposes in accordance with its zoning.

Could the Council be adequately compensated?

The Court:

• rejected an argument by the Council that as there was a lack of available land for the Council to purchase to replace the land lost as a result of the creation of the ROW, monetary compensation was not adequate compensation,
• found that there was no evidence that the Council would have acquired replacement land, and
• accepted the evidence of the Applicant’s valuer that 50% of the land value of the land comprising the ROW was adequate compensation in the absence of any evidence to the contrary.

Had the Applicant made all reasonable attempts to obtain access to Lot 1?

The Court held the Applicant’s attempts to obtain access through neighbours’ properties were reasonable.

Comment

The evidence suggests that even if the Council had the power to grant the ROW, it may not have done so. Nevertheless, the Council argued it had no power to grant the ROW across the Community Land as this would be in breach of the Local Government Act.

Section 45(1) of the Local Government Act provides that  a council has no power to sell, exchange or otherwise dispose of community land. Section 45(2) contains an exception in relation to leases and licences. Section 45(3) provides that a council may grant any other estate in community land to the extent permitted by this Division or under the provisions of another Act. Section 21(1) of the Interpretation Act 1987 (NSW) defines ‘estate‘ to include ‘interest, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity’.

The case shows that the Supreme Court is not bound by s45 when exercising its power under s88K of the Conveyancing Act. Even if the Council had been willing to grant the ROW to the Applicant, arguably s45 of the Local Government Act would have prevented it from doing so. The case was therefore, at least in part, ultimately the product of the restriction imposed on the Council by s45.