Written by In Weissflog v Community Association DP 270159 [2022] NSWSC 239, the Court considered an application for the imposition of an easement in the nature of a right of carriageway under s 88K of the Conveyancing Act 1919 (NSW). Vehicular access to the plaintiff’s land could only be practically obtained by using roads that pass through the defendant’s estate. As no other practical means of vehicular access to the plaintiff’s land existed, the plaintiff claimed the easement was reasonably necessary for the effective use or development of their land.
The defendant opposed the imposition of the easement on various grounds. Although it was open to the plaintiff to arrange for alternative access, they had failed to take steps to do so. The defendant also argued the easement would result in additional traffic and noise, which would have the effect of reducing the serenity and security within the estate. Further, the defendant argued the Court should not impose the easement due to the plaintiff’s unreasonable conduct for undertaking building works and carrying out a cat breeding business without seeking necessary approvals, and thus the easement was inconsistent with the public interest.
The Court found although the construction of alternative means of access was not impossible, it would be a significant expense to the plaintiff. Irrespective of the plaintiff’s use of the land as a cat breeding business, the Court concluded the effective use of the land as a residence requires vehicular access, and thus the requirement of reasonable necessity was satisfied. As the plaintiffs intended to seek development consent for their cat breeding facility, the Court considered that a development application cannot be adequately considered until the plaintiffs confirm the land has legal and physical access.
The Court ordered for the imposition of the easement on the condition that the plaintiffs were to obtain, within a reasonable period, development consent for their cat breeding facility and that the easement could not be used for purposes other than the approved use. The Court also ordered the defendant to be compensated for the loss or disadvantage that will arise from imposition of the easement, including the additional traffic.
The case demonstrates how the Court can exercise their discretion to impose an easement, subject to certain conditions, to resolve claims of prohibited use of land.