Written by In Tout v Johnson [2021] NSWSC 1311, the NSW Supreme Court considered an easement application by the plaintiff to seek right of carriageway over a track on the defendant’s land to obtain access to public road. The plaintiff and defendant owned adjoining rural lots, which were used for residential and rural purposes. Given the track was damaged by heavy rain and became impassable, the easement sought would allow the plaintiff to undertake works on the track to repair the damage.
The issue at hand was whether the proposed easement was reasonably necessary for the effective use or development of the land that will have the benefit of it within meaning of s 88K(1) of the Conveyancing Act 1919. In doing so, the Court considered the extent to which access to and from the main road already existed.
No evidence was adduced in relation to costs for repairs, the type of crossing required and the necessary upgrade of the road, which made it difficult for the Court to assess the reasonable necessity of the easement. The Court also found that the easement would have a “substantial” effect upon the defendant, as it would restrict the extent to which the land near the easement could be utilised or managed as pastures, while the plaintiff’s land already had reasonable access to and from the main road.
As such, the plaintiff failed to show that the easement was reasonably necessary for the effective use or development of her land under s 88K(1) of the Conveyancing Act. Therefore, the application was refused. This case demonstrates the importance of assessing the “reasonable necessity” of proposed easements, as the law recognises that regard must be given to the fact that imposition of the easement may entail a reduction or constriction of the property rights of the landowner.