A GUIDE TO SECTION 88K EASEMENTS

Securing appropriate access to land can make or break a development project.

Elizabeth McDonald, Principal of our property law team have considerable experience in advising on easements and land access law.  In this article, Elizabeth considers section 88K easements as one means of balancing private interests in development with the promotion of the public interest.

WHAT IS A SECTION 88K EASEMENT?

Section 88K of the Conveyancing Act 1919 (NSW) gives courts 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 pay:
  • adequate compensation to their neighbours; and
  • their neighbour’s legal fees.

Requirements

The court will consider the following questions in any section 88K application:

  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?

1 - Reasonable necessity

A section 88K easement must be reasonably necessary for the use and development of the land itself, not just for the specific use proposed by a developer at any given time.

The Court imposes a sliding scale when considering whether an easement is reasonably necessary.  The bigger the adverse impact on the neighbouring property, the stronger the developer’s ‘reasonable necessity’ argument needs to be.  

2 - Public interest

The simplest way for an applicant to satisfy the ‘public interest’ criterion is to obtain a development consent which contemplates a new easement. Without a consent, parties often need to engage planning experts and other consultants to provide formal opinions to the court.

3 - Compensation

The Court must be satisfied that a neighbour can be adequately compensated for any loss or other disadvantage that will arise from the imposition of an easement.

The amount of compensation that a successful applicant pays to their neighbour is a matter of valuation, not law. Parties will generally engage professionals to determine the value of the neighbouring property with and without the proposed easement.

4 - All reasonable steps

Section 88K is intended to be used as a last resort. It is a pathway available to applicants where negotiations have broken down and the parties need a neutral decision-maker to reach a solution.

It is not enough to simply make a request for access over a neighbour’s property.  The court will expect to see evidence that the applicant has offered to pay a reasonable amount of money to their neighbour, in exchange for the grant of an easement.  For this reason, many developers will obtain formal valuations before approaching their neighbour.

5 -  Discretion

The court always has discretion to grant or refuse a section 88K application.  This means that a court can refuse to grant an easement even if all the requirements discussed above are satisfied. 

ARE THERE OTHER OPTIONS?

Section 88K easements are just one pathway for developers to secure access and for affected land owners to secure compensation.

 The property team at SWS Lawyers can provide advice on section 88K applications and a range of other options, including:

  • negotiated land access and compensation agreements;
  • prescriptive easements;
  • access licences and leasing arrangements;
  • orders under the Access to Neighbouring Land Act (2000) (NSW); and
  • specific arrangements securing access for mining and resources projects in New South Wales.

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