Posted on August 16, 2023 by Megan Hawley and Samantha Hainke

When is an easement ‘reasonably necessary’ to access landlocked land?

In a recent Supreme Court decision, the Court exercised its discretion to impose an easement over the defendant’s land to provide access to landlocked land, after the defendant constructed a gate to prevent informal access. The plaintiffs had used the informal access route for over 30 years.

It is not uncommon in rural areas in particular, for access to public roads to be obtained from properties across other private land along informal tracks. Often a change in ownership of the land can result in informal access being denied, and landowner’s finding themselves without any legal right of access to the public road network.

The case therefore provides some helpful guidance for landowners seeking to understand what the Court will consider in determining whether to order easements to provide access from landlocked properties to the public road network.


The plaintiffs were the registered proprietors of a landlocked rural block at Burraga (Mulder Land). Since the early 1980s, the plaintiffs had accessed their land across a combination of rights of carriageway across other land, Crown Roads, and an existing track on the defendant’s land, to obtain access to a public road called Bald Ridge Road. 

In 2018, to stop incidents of uninvited hunters and uninvited trail bike riders entering the property, the theft of timber and livestock, the dumping of rubbish, as well as cars speeding  along the track, the defendant installed gates on the boundaries of its property (Defendant’s Land) barring the plaintiffs’ access to the Mulder Land. 

As a result, the plaintiffs sought an order from the Court for an easement over part of the existing track situated on the Defendant’s Land (Proposed Easement). Other properties between the Mulder Land and the Defendant’s Land had an easement over the existing track, and it was unclear why the Mulder Land did not also have an easement over the track. 

Legal Principles 

Section 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) provides the following provisions in regards to the Court’s power to impose easements:

(1) The Court may 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.

(2) Such an order may be made only if the Court is satisfied that–

(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and

(b) 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

(c) 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.


The defendant resisted the imposition of the Proposed Easement on the basis that: 

  • the Proposed Easement was not ‘reasonably necessary’, due to the existence of an alternative route across other properties to the south of the Mulder Land to get to Bald Ridge Road (Alternative Route);
  • the defendant could not be ‘adequately compensated’ for ‘any loss or other disadvantage’ that would flow from the imposition of the Proposed Easement; and
  • the plaintiffs had not taken all reasonable steps to obtain an easement or easement having the same effect as the Proposed Easement as they had not attempted to negotiate the easement along the Alternative Road, which was said by the defendant to have “the same effect” as the Proposed Easement. 

Reasonable necessity

The Court held that an easement will be reasonably necessary where land would otherwise be landlocked, and no practical use or development could be made of it without the easement: Swann v Spiropoulos [2006] NSWSC 860 at [64] 

Quoting the Court of Appeal’s judgment in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31, 257, the Court said that the question of ‘reasonable necessity’ turns on the ‘consideration of the alternative methods by which use or development [of the land] could be achieved‘.

The Court concluded that the proposed easement was ‘reasonably necessary’ on the basis that:

  • no practical use or development of the Mulder Land could be made without an easement;
  • the evidence of past use of the route of the Proposed Easement was relevant, and the plaintiffs had been using the route since 1980 until the gates were locked in 2018 by the defendant;
  • the Proposed Easement would not impact  the defendant’s rights to otherwise develop that land, as the track was already burdened by existing right of carriageway benefiting other neighbours;
  • as the Alternative Route passed through four different lots and would require the plaintiffs to obtain rights from each of those proprietors, access by the Alternative Route would result in greater expropriation of proprietary rights which should be a last resort;
  • the Alternative Route and the Proposed Easement were not equivalent access routes, as the Proposed Easement provided access to a part of Bald Ridge Road that was significantly closer to the nearest town, and improved the travel time for a round trip by approximately 60 minutes; and
  • in assessing the quality of both the Proposed Easement and the Alternative Route, the evidence before the Court revealed that the Proposed Easement land is well-maintained, and there is no reason that it would not continue to be well-maintained.

Adequate Compensation 

The Court noted that if there was no evidence from which compensation could be assessed, an order granting an easement should not be made. In this case there was some evidence, but no evidence admitted from the plaintiffs’ regarding land value. The Court, however, formed the view that whilst there was little evidence before the Court regarding land value,  this was a case in which the Court could ‘act as juror’ and determine for itself the appropriate compensation.

Although compensation can cover intangible detriment, the Court rejected the defendant’s ‘subjective’ concerns that the Proposed Easement would cause the defendant to ‘lose control’ of who may access its property, create the risk of other uninvited persons committing crimes on the property and put the defendant’s family ‘at significant risk’. This was partly because the Defendant’s Land was already burdened by easements benefitting a number of properties, and whilst that easement was not used extensively at present, it could be in the future, even without the Proposed Easement being granted.

Whilst a small amount of compensation was paid for a ‘blot on title’ the Court again noted that the existence already of easements over the Defendant’s Land would mean it would be unlikely that a prospective purchaser would be deterred from purchasing the Defendant’s Land if the plaintiffs were granted the Proposed Easement.

Reasonable steps taken by the Plaintiffs  

The defendants argued that the Court should not order the Proposed Easement, as the plaintiffs had not made all reasonable attempts to obtain an easement having the same effect as the Proposed Easement, as they had not attempted to obtain an easement along the Alternative Route.

The Court rejected this argument and held that the phrase ‘an easement having the same effect‘ only contemplates variations of the proposed easement being sought and does not require attempts to be made to obtain some other easement (such as an easement over the Alternative Route).

The purpose of s88K(2)(c) was so that a defendant cannot take a technical objection if the easement sought from the Court is slightly varied from the easements sought during negotiations.

If section 88K(2)(c) were to be construed otherwise, the Court said, ‘a plaintiff could be “held to ransom” by opportunistic behaviour by defendants and obstruct the statutory purpose of s 88K‘.

The Court further cautioned that to read this section otherwise: 

‘would have the effect of requiring a plaintiff to exhaust the universe of alternative easements, which could frustrate the development or use of land, particularly where other proprietors affected by an alternative easement are not joined to the proceedings.’

Provided that a plaintiff has made reasonable attempts in relation to the proposed easement or any variations to the proposed easement, then section 88K(2)(c) will be satisfied. 

There was therefore no obligation for the plaintiffs to demonstrate they had made reasonable attempts to obtain an easement over the Alternative Route.

It was also noted by the Court that in any event an easement across the Alterative Route would not have the same effect as the Proposed Easement because it was inferior due to travel time to the nearest town.

Court’s discretion 

Having considered all the grounds of opposition to the easement raised by the defendant, the Court deemed it appropriate to exercise its discretion to make an order imposing the easement sought.

The judgment in Mulder v Laura Holdings Pty Ltd [2023] NSWSC 812 can be accessed here

If you have any questions about this blog post, please leave a comment below or contact Megan Hawley on 02 8235 9703