This article will discuss the second element that must be satisfied for a court to create an easement under s 88K of the Conveyancing Act 1919 (NSW), which is that the proposed use of the dominant land is not inconsistent with the public interest. This element represents a balancing of competing private interests as well as the promotion of the public interest (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2, [95]).
In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, the court took into account the fact that ranting the easement would frustrate the Development Control Plan and significantly diminish the prospect of the Tanlane land, as a point that it may be inconsistent with the public interest.
It has been noted that there are special public interest considerations in granting an easement over environmentally sensitive land (Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, [202]). This is equally true of community land. Bryson J in Marshall v The Council of the City of Wollongong [2000] NSWSC 137, [26] remarked that it would be rare that community land used in any active way could be subjected to an easement without inconsistency with the public interest in achieving the purposes for which the community land was held.
