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.

This article will discuss the first 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 easement is reasonably necessary for the effective use or development of the dominant land.

This element does not require that there be absolute necessity, with Barret J observing in Kent Street Pty Ltd v Sydney City Council [2001] NSWSC 268, [12] that this does not ‘direct attention to what is indispensable.’ It also does not require the applicant to show that the easement is necessary to achieve the highest and best use of the land (Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445, [154]-[155]). The element may be satisfied by showing that the proposed development is appropriate to the area and is an economically rational use of the land.

To meet the ‘reasonably necessary’ standard, a court needs to be satisfied that the proposed use is reasonable compared with other possible alternatives. The court must further be satisfied that use of the land with the easement is substantially preferable to use without it, as clearly outlined by Hodgson CJ in 117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504, 508-9. Therefore, the threshold is above something that is simply convenient but it is less than absolute necessity – (D & D Corak Investments Pty Ltd v Yiasemides [2006] NSWSC 1419, [13] (Young J)). As such, an easement can be granted even if the land could theoretically be effectively used and developed without it (117 York St Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504).

The applicant bears the onus of showing reasonable necessity and adducing evidence about alternatives. If they fail to do so, the Court may not be able to accept their primary submission that an easement is reasonably necessary (Govindan-Lee v Sawkins (206) 18 BPR 35, 3883, [48]-[50]).

Reasonable necessity must be measured having regard to the burden the easement would impose on the servient land. As Hodgson CJ found in Katakouzinos v Roufir Pty Ltd [1999] NSWSC 1045, [42], the greater the burden the stronger the case needed to justify a finding of reasonable necessity. The court must bear in mind the confiscatory nature of an easement and that property rights are valuable rights that the court should not lightly interfere with (Woodland v Manly Municipal Council [2003] NSWSC 392, [19]).

For example, the element was not made out in Aussie Skips Recycling Pty Ltd v Strathfield MC [2020] NSWCA 292, where the Court found that the proposed easement was incompatible with the continued beneficial ownership of the servient tenement as it would enclose the area constituting 68% of the Council’s land. It was therefore incapable of comprising an easement.

In assessing whether the easement is reasonably necessary, the court must make a value judgement with no exercise of discretion (Woodland v Manly Municipal Council [2003] NSWSC 392, [10]). However, once this element is satisfied, if the others are as well, then the Court will have the discretion on whether or not to grant the easement.