In the case of Roma Lopeman v Win Corporation Pty Ltd [2020] NSWSC 1305, the Applicant sought an order that the Respondent perform its obligation pursuant to an agreement in the nature of an easement between the Applicant and Respondent with regard to the grant of vehicular access to the Applicant’s land though the Respondents land, or alternatively, an order for a declaration that the Respondent be estopped from departing from the terms of the agreement pursuant to s 88K of the Conveyancing Act 1919 (NSW) (“CA”) which provides the Court with power to create easements. 

Three issues arose, a) whether a letter from the defendant to the Council attaching a Deed of Vehicular Access constituted a binding and enforceable agreement; b) whether the Respondent would be estopped from departing from the terms of the alleged agreement or a representation that it would grant the easement; and c) whether, irrespective of the above, the Applicant satisfied the statutory test under s 88K CA for the granting of an easement. 

The Court ultimately found that the proposed easement would be reasonably necessary for the effective use and development of the land for the construction of a residential dwelling, and an easement was granted pursuant to s 88K of the CA. This case demonstrates the power of the Court under the Conveyancing Act to create easements in circumstances where parties have not reached a legally enforceable agreement. 

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