Written by The Supreme Court of New South Wales has reinforced that landowners who unreasonably oppose access arrangements may lose the costs protection ordinarily available in easement proceedings under s 88K of the Conveyancing Act 1919 (NSW).
In Jeffrey v Adams [2023] NSWSC 1270, the Court was asked to determine whether a right of carriageway should be created over neighbouring land to secure ongoing access to the applicants’ property. The application arose after existing access arrangements became impractical due to physical impediments and the applicants sought to formalise a route that had long been used as a workable alternative.
When considering whether an easement should be imposed, the Court examined the practical requirements of the land, the history of access between the parties and the suitability of competing routes. It concluded that the proposed easement represented the most effective means of access and was reasonably necessary for the continued use of the property. Alternative routes advanced by the opposing landowners were not accepted because of concerns regarding their safety, gradient and practicality.
A significant aspect of the judgment concerned costs. Section 88K generally contemplates that an applicant seeking a compulsory easement will bear the legal costs associated with obtaining that benefit. However, the Court emphasised that this protection is not absolute.
The evidence demonstrated that the respondents had adopted positions which went beyond merely requiring the applicants to establish their case. Their opposition lacked a sufficient legal basis and unnecessarily prolonged the dispute. In those circumstances, the Court considered it appropriate to depart from the usual rule and ordered the respondents to pay the applicants’ costs.
The decision serves as an important reminder that parties resisting easement applications should ensure their objections are grounded in legitimate legal or factual concerns. While the legislation affords affected landowners significant protection, unreasonable conduct may ultimately result in an adverse costs order.