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In McGrath v Mestousis [2017] NSWSC 995, the Supreme Court of New South Wales, considered a case where the plaintiffs, under s 88K Conveyancing Act 1919 (NSW), sought imposition of an easement for storm water drainage over the defendant’s property, contending that the easement was necessary for them to develop a home unit on their land.
By considering similar developments around Sydney, Council approval and the placement of the easement, the Court ultimately used their discretionary power to grant an easement in favour of the plaintiffs over the defendant’s property.
The plaintiffs were the owners of a property at 32 Darwin Street, West Ryde, and they brought an application under s 88K of the Conveyancing Act 1919 (NSW) for the imposition of an easement for stormwater drainage over a property at 31 Huxley Street, West Ryde, owned by the defendant.
The plaintiffs contended that the easement was necessary to enable them to carry out a home unit development on their land.
The easement was opposed by the defendant.
The Supreme Court identified that the principal matters of factual controversy between the parties concerned the construction that would be involved in installing the drainage pipe in the proposed easement and the various risks and inconveniences involved with such a construction, such as damage to the defendants existing improvements and the likelihood of lengthy and significant disruption.
The Court referred to s 88K of the Conveyancing Act 1919 (NSW), which outlines the fundamental concept of whether an easement sought should be granted.
The requirement to grant an easement is whether the easement sought to be imposed is reasonably necessary for the effective use or development of the land that will have the benefit of it.
The Court was satisfied that the proposed easement was indeed ‘reasonably necessary’ for the effective use or development of the plaintiffs’ property.
The plaintiffs had obtained Council consent to the development, the development had been approved in accordance with applicable planning laws, and the plaintiffs had demonstrated that alternative methods of dealing with the storm water would be unlikely to meet the Council requirements.
An expert witness, having explored various alternative routes for an easement to drain storm water from the plaintiffs proposed development, found the route through the defendants property was the most reasonable option.
Furthermore, the Court considered the effect of the grant of the easement on the defendant’s property and found that the use of the easement itself was unlikely to have any significant effect on the defendant’s use of the property.
The defendant contended that the construction of the easement would cause significant damage and disruption to the property.
The Court accepted while there would be a risk of damage being caused during construction, they did not consider that the degree of disruption or inconvenience would likely be so severe as to require the defendant’s family to move out of the property whilst the works proceeded.
The Court held that the easement would not negatively impact the defendant’s use and enjoyment of the property and the Court ordered that the defendant be compensated for any economic effects and any diminution in value of the property.
This case is a reminder of the Court’s discretionary ability to impose easements under s 88K of the Conveyancing Act 1919 (NSW) if they consider the easement ‘reasonably necessary’ for the land’s proposed use or development.
In their consideration of what is considered ‘reasonably necessary’ the Court considered the fact that the plaintiff’s proposed development was of a type commonly seen throughout Sydney and that it had been approved by the local Council.
This case shows that the Court has a favourable view of Council approval in its consideration of what is ‘reasonably necessary’, and further is open to interpret the meaning of ‘reasonably necessary’ by taking into account the current landscape and common developments throughout the city.
Tresscox Partner Gary Newton and Law Clerk Henry Yuan.
To read the original article <a href="https://www.tresscox.com.au/page/our-news/caseflash/what-is-reasonably-necessary-for-the-court-to-make-an-order-imposing-an-easement/" target="_blank">click here.</a>
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