The most common questions we receive from experienced property developers relate to easements. The right to use a strip of land under or over a neighbouring property, whether this be for drainage, construction supports or rights of way, can make or break a development project. 

In this article, we explain how a property owner can use section 88K of the Conveyancing Act 1919 (NSW) to secure an interest in a neighbouring property to assist with a development project.

WHAT IS A SECTION 88K EASEMENT?
Section 88K of the Conveyancing Act 1919 (NSW) gives the Supreme Court the power to make orders imposing easements over land in certain circumstances.

When section 88K was introduced, parliament noted that private development can be in the public interest, especially if that development creates new housing stock or new economic opportunities. The aim of the section was to avoid situations where neighbours could block developments by refusing to grant reasonable access rights.

In successful section 88K applications, the court may, in its discretion:

  1. impose an easement which benefits the applicant’s land and burdens neighbouring land; and
  2. require the party benefiting from the easement to compensate their neighbours and pay their neighbour’s legal fees.

In what circumstances will the Court impose an easement?
The Court will consider the following questions when determining whether to impose an easement:

  1. Is the proposed easement reasonably necessary for the effective use or development of the applicant’s land?
  2. Will the applicant’s use of their land be inconsistent with the public interest?
  3. Can the neighbouring land owner be adequately compensated for any loss or disadvantage that they might suffer if an easement is granted?
  4. Has the applicant taken all reasonable steps to obtain an easement?
  5. Should the Court exercise its discretion and impose an easement?

We have previously written a guide on how the Court approaches these five questions and in future property development alerts we will profile some case studies involving section 88K easements.

Of course, it is important to remember that section 88K easements are just one pathway for developers to secure access rights.

Elizabeth McDonald, Principal and Bronwyn Scott, Consultant of our property law team have considerable experience in advising on section 88K easements and a range of other options, including:

  • land access and compensation agreements;
  • prescriptive easements;
  • access licences and leasing arrangements; and
  • orders under the Access to Neighbouring Land Act (2000) (NSW).

    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.
Elizabeth McDonald

Elizabeth McDonald -

Principal

Property law specialist