Written by In the recent case of Alramon Pty Ltd v City of Ryde Council [2022] NSWLEC 108, the Land and Environment Court considered an appeal against a Council decision which refused a development application for a childcare centre. The Applicant sought to rely on access to a neighbouring Council car park and for the granting of an easement under s 88K of the Conveyancing Act 1919 (NSW) in the form of a right of carriageway for traffic arising from the childcare centre.
The Land and Environment Court had to consider whether the easement over the land was reasonably necessary for the effective use or development of the land with the benefit of the easement, whether the use would be inconsistent with the public interest and whether the owner of the burdened land and each person with a registered estate or interest in the land could be adequately compensated for any loss or disadvantage arising from the imposition of the easement.
The Court found that the intended use of the easement was not reflective of a road use, but as a carriageway purely serving the childcare centre. Additionally, the easement would be a burden on the Council as it would prevent future development of its land in the area of the easement, and the Council would not be adequately compensated because the imposition of the easement would convert their land into a ‘thoroughfare’ for users of the Applicant’s land.
Furthermore, the Court was not satisfied that the applicant had made reasonable attempts to obtain an easement over other land having the same effect as the proposed easement. As such, the LEC refused to exercise its discretion to grant the easement.