A right of way for the passage of vehicles and services, a drainage easement for stormwater disposal, an overland flow path, bushfire emergency exits, easements for public authority infrastructure (electricity lines, substations), easements come in all flavours and colours. On your certificate of title, they represent an interest (or burden) you suffer for someone else’s interest in part of your land.

They come in fundamentally two types – private and public. A public easement is an easement in gross and benefits a public authority: council, water supply or electricity supply authority. A public authority can use its compulsory acquisition powers to impose an easement.

A private easement benefits an adjoining landowner. In any negotiation for a private easement, there are usually a number of documents required: a survey plan showing the proposed easement (width, location across the burdened land); written terms the of easement – including any on-going access provisions for maintenance; a land valuation by a registered valuation expert and determination of monetary compensation; and some justification as to why the easement is necessary. As a rule, most landowners do not like the prospect of their land being burdened (and controlled) by someone else. It is often described as a ‘blot’ on their title.

Failing a negotiated outcome, only the Supreme Court of NSW can impose an easement on a property (the Land and Environment Court of NSW can exercise that function as well, but only if the easement is part of its determination of an appeal for development consent).

Imposing an easement on a landowner is not a function that the Court takes lightly and there are some significant hurdles for an applicant to overcome though a formal hearing of the matter. An applicant for an easement has to convince the Court:

  • that the proposed easement is reasonably necessary for the effective use or development of the applicant’s land
  • that the use or benefit of the easement is in the public interest
  • that the burdened landowner can be adequately compensated
  • that all reasonable attempts have been made to negotiate an easement; and
  • any reason why the respondent (landowner) should not get its costs of the proceedings.

On the last point, the presumptive cost rule is that the applicant for an easement has to pay the respondent landowner their legal costs (including any expert costs).

Whether you are seeking an easement or the subject of the potential burden – you need to get legal advice at the outset. Call our expert Property & Planning Team to advise you further.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.

Paul Jayne

Paul Jayne -

Consultant

Environmental planning and property law specialist