Easement over Neighbour’s Property, Section 88K of the Conveyancing Act

3 September 2023 in Property Dispute Lawyers

Easement over Neighbour’s Property, Section 88K of the Conveyancing Act 

Section 88K of the Conveyancing Act 1919 (NSW) is designed to provide a structured process for property developers or owners to apply to the Supreme Court to create an easement where such an easement is reasonably necessary for the effective use or development of the applicant’s land. It acknowledges the right to develop and use real property (land).

What is an easement?

Easements grant specific rights to use another person’s property for defined purposes. Common examples include drainage, sewerage or granting access to crucial utilities or walkways. This right is officially recorded on the titles of both properties, meaning the easement stays with the land even if the land is sold. The land over which the easement passes is known as the “servient land” or “burdened land” and the property benefiting from the easement is termed the “dominant land” or “benefited land”. 

Section 88K Application

Gaining authorisation under Section 88K involves making an application to the Supreme Court of NSW. The application should outline the development plans, why the easement is necessary and that all reasonable attempts have been made to obtain the easement by agreement. The court evaluates various factors, including the importance of the easement, the benefits of the development and any potential effects. 

The requisites for a successful application can be summarised by the following:

1. The easement is “reasonably necessary for the effective use or development of other land”;
2. The “use of the land having the benefit of the easement will 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… can be adequately compensated for any loss or other disadvantage”; and
4. “All reasonable attempts have been made by the applicant for the order to obtain the easement…but have been unsuccessful”.

In cases where an easement order is granted, the court specifies the nature, terms and potentially the time limits of the easement. Compensation details are also outlined, unless exempt due to special circumstances. Notably, compensation is calculated by reference to the loss sustained by the owner of the burdened land, as opposed to the benefit derived by the owner of the benefited land (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010)).

How can BSM help?

Brander Smith McKnight’s expert team of property lawyers thoroughly understands the intricacies surrounding Section 88K and easements. Our legal team is dedicated to helping you navigate the complexities of property development so you can confidently pursue your development goals while adhering to legal obligations.

If you have questions or need assistance with Section 88K applications or any other property-related legal matters, please don’t hesitate to contact us.