Written by In the recent case of Menassa v Shi [2023] NSWSC 54, the New South Wales Supreme Court considered whether imposing an easement to drain water over the defendants’ land was necessary to carry out development on the plaintiff’s land in Carlingford, which was granted deferred commencement development consent by the City of Paramatta Council in November, 2020.
The proposed drainage easement was 1 metre wide and runs adjacent to the location of an on-site detention (OSD) tank and extends along the length of the northern boundary of the defendant’s land. The easement will provide a drainage solution for the site to allow stormwater to be captured in pits with the OSD system, therefore minimising stormwater flow downstream towards the Council’s network system.
The defendants opposed the application on various grounds. They contended the proposed easement was not reasonably necessary, as the plaintiff had an alternative easement option over neighbouring land and they also raised concerns about the impact of the easement on their property.
In assessing whether an easement should be imposed by reference to the criteria set out in s 88K of the Conveyancing Act 1919, the Court held that the proposed easement was reasonably necessary for the plaintiff’s effective use or development of the property and the use of the defendant’s land for development with easement would not be contrary to public interest. As such, the easement application was granted. Under s 88(4) of the Act, the court also considered $26,500 to be an appropriate amount of compensation for the loss or disadvantage that will arise for the imposition of the easement.
This case is of particular importance for developments in assessing the risks in being able to procure the drainage easement over adjoining properties.