When Can a Court Order an Easement? NSW Decision Provides Guidance

Securing infrastructure across adjoining land can become a significant issue where a development depends on access that a neighbouring owner is unwilling to provide. A recent NSW Land and Environment Court decision demonstrates that, in limited circumstances, judicial intervention may provide a pathway forward.

St Mary & Angels Pty Ltd v Strata Plan 32407 [2026] NSWLEC 74 concerned land at Chester Hill and a proposed childcare center development requiring stormwater to be directed through adjoining strata property before reaching Council’s drainage network. Despite efforts to reach an agreement with the neighbouring strata owners, the developer was unable to secure the easement by consent. As a result, the developer applied to the Land and Environment Court of NSW for an order creating the easement. 

Duggan J considered the application within the framework of s 40 of the Land and Environment Court Act 1979 (NSW), which enabled the Court to exercise the relevant jurisdiction under s 88K of the Conveyancing Act 1919 (NSW).

A central consideration was whether the drainage arrangement was sufficiently important to justify burdening the neighbouring property. The Court accepted that the proposed easement was necessary to support the proposed childcare use of the property and that the associated drainage arrangements raised no inconsistency with the public interest. The Court also considered the financial impact on the strata owners, approving an $85,000 payment for the easement following an expert valuation that assessed its market value at $58,000. 

Ultimately, this case illustrates that an easement application requires more than demonstrating that an arrangement would be convenient. Applicants must establish the statutory requirements and show that meaningful efforts have been made to resolve the issue commercially.

For developers, this makes early technical investigations, valuation evidence and negotiations particularly important. For neighbouring owners, a proposed easement should be examined in terms of its operational consequences, potential loss and the payment available if the land is burdened.