Section 88K Easements - A reminder of the applicable principles

ATB Morton Pty Ltd v Community Association DP270447 (No 2) [2018] NSWLEC 87.

In this case, the NSW Land and Environment Court decided to grant an easement in response to an application made under s 88K of the Conveyancing Act 1919.

In so doing, the Court has provided a useful overview of the approach it will take to analysing each of the following 4 preconditions prescribed under s 88K which must be satisfied before an easement will be granted:

  1. the easement must be reasonably necessary for the effective use or development of other land that will have the benefit of the easement;

  2. the use of the land having the benefit of the easement must not be inconsistent with the public interest;

  3. the owner of the land to be burdened by the easement and each other person having an estate or interest in that land ... must be able to be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement; and

  4. all reasonable attempts must have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.