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In RVA Australia Pty Ltd v Rosemary Elizabeth Marzouk [2017] NSWLEC 160, the Court held that notwithstanding section 88K of Conveyancing Act 1919 (NSW), the Court ultimately has discretion over whether to make an order for an easement. Considerations include:
- The easement must be reasonably necessary for use or development of the land. There should be a balance between its purpose and effect on the land.
- Public interest regarding the easement.
- The owner of the burdened land and those with an interest in it must be able to be compensated (section 88K(2)(b)).
- Before seeking a Court order the applicant must first make reasonable attempts to obtain the easement by negotiating with the person affected and offering compensation.