Written by In the recent case of Sydney Redevelopments 1 Pty Ltd v Chui [2023] NSWSC 695, the NSW Supreme Court considered an application for the imposition of an easement under Section 88K(1) of the Conveyancing Act 1919 (NSW).
The plaintiff owned land on Pitt Street in Sydney’s CBD and intended to use the property to construct a 34-storey hotel. The defendant owned the adjoining lot. For the purposes of the development, the plaintiff required access to airspace for crane swing and access to the defendant’s property for the erection of a hoarding and scaffolding.
The Court found that the plaintiff had made all reasonable efforts to trace the defendant by contacting the company who leased the premises from the defendant and the solicitor who executed the lease, but these attempts with unsuccessful. The Court noted that the defendant’s decision to not participate in the proceedings does not stand in the way of the plaintiff obtaining an easement if found that the easement is reasonably necessary.
The Court found that the easement was necessary for the plaintiff to be able to construct the development and it would not negatively impact the ability of the defendants to use their building. The easement was not inconsistent with the public interest and the defendants could be adequately compensated. As such, the Court exercised their discretion to grant the easement and ordered the plaintiffs to pay the defendants compensation for the easement in the sum of $63,000.
This case demonstrates that easements can be used to facilitate the reasonable development of land, although they must ensure that just compensation is paid.