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:
  1. 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.
  2. Public interest regarding the easement.
  3. The owner of the burdened land and those with an interest in it must be able to be compensated (section 88K(2)(b)).
  4. 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.

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