Court of Appeal upholds refusal to grant easement over community land
Does the Court have the power to grant an easement over community land? A recent decision of the Court of Appeal suggests that it may not.
In this article, we look at the decision of the Court of Appeal in Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council  NSWCA 292.
Court granted easements under section 88K
The power of the Court to grant easements over land is found in section 88K of the Conveyancing Act 1919 (Conveyancing Act). The relevant Court is the Supreme Court of NSW.
Section 88K enables a person to apply to the Supreme Court to grant an easement over land, but requires a number of preconditions to be satisfied before the Court can grant such an easement. This includes principally, a requirement that the easements be “reasonably necessary” for the effective use or development of the land benefitted by the easement.
Additional requirements also include:
Easements of necessity are often sought in circumstances where a site is landlocked and a right of way is sought to enable access to the land. Also common are easements for drainage and other services.
Ordinarily, these pre-conditions can be readily satisfied, provided sufficient evidence is put forward justifying the circumstances which give rise to the necessity, that a valuation report is prepared identifying the appropriate compensation sum, and offers for compensation have been put to the landowner prior to commencing proceedings.
However, a local council does not have the same powers as other fee simple owners when it comes to council owned land and its ability to deal with such land is governed by the Local Government Act 1993 (LG Act). In particular, if land has been designated community land, restrictions are imposed by the LG Act which would prevent a council from selling or otherwise disposing of that land, as well as restrictions on the ability to enter into leases, licences or other estates (see sections 45 and 46).
It was therefore relevant for the purpose of this case to consider whether a Court when granting an easement under section 88K of the Conveyancing Act is limited by operation of the LG Act in the same way that a local council is.
The proceedings sought to overturn the previous decision of the Land and Environment Court (LEC) in Aussie Skips Recycling Pty Ltd v Strathfield Municipal Council  NSWLEC 22.
Here, the operator of a waste transfer and recycling facility had commenced proceedings under section 88K of the Conveyancing Act seeking for the court to grant easements over land designated as community land on the basis that the easements were “reasonably necessary” for the effective use of the waste facility.
The LEC dismissed that application on the basis that the easements sought were not easements known to law, and were not reasonably necessary for the effective use of the operator’s land. You can read about that decision here.
Ultimately, the Court of Appeal upheld the decision of the LEC. In doing so, the Court also elected to declare that the Court may in fact not have the power to grant easements over community land.
The power to grant easements over community land
Until now, only one previous decision had considered the issue. That case is Marshall v Council of the City of Wollongong  NSWSC 137. In Marshall, Bryson J found that the limitations imposed on local councils regarding how it can deal with community land under the LG Act did not by implication limit the power of the Supreme Court under section 88K.
The Court of Appeal agreed that there was no express provision in the LG Act which limited the powers of the Supreme Court in the grant of easements under section 88K, and that there was a general presumption against reading implied limitations on the conferral of power to the Court. However, it indicated that there are some instances where a limitation of power is inherent.
In this regard, the Court of Appeal listed four reasons which would suggest that the Court does not have the power to impose easements over community land.
1. Undermining the LG Act
The LG Act contains a detailed statutory scheme which mandates that a council has no power to grant an easement over community land. It would therefore undermine the operation of those provisions if the Court could exercise that power, even though a council cannot. Rather, the statutes should be read so that the schemes operate harmoniously and not in conflict.
2. Reasonable attempts not possible
Section 88K(2)(c) includes an express pre-condition that an order for an easement can only be granted where the court is satisfied that all reasonable attempts have been made by the applicant to obtain the easement, with those attempts being unsuccessful. The requirement for reasonable attempts implies that there is a legal capacity for the easement to be granted by agreement. If there is an issue with legal capacity, as exists with a council’s dealings with community land, then that provision would have no role to play.
3. Modification by deed not possible
Adopting the same reasoning in relation to section 88K(6)(b), the Court of Appeal found that a council would similarly not have the power to agree to the modification of an easement by deed. That provision would therefore also have no application.
4. Legal anomaly
Similarly, an additional anomaly would arise given that section 88K(8) provides that an easement imposed under section 88K is to have effect as if it were contained in a deed. That is, despite the fact that the council could never have entered into such a deed by operation of the LG Act.
Whilst this does not settle the issue once and for all, it is a strong indication from a Superior Court that there are serious jurisdictional barriers to the grant of easements over community land. Therefore, in order to obtain an easement over land classified as community land, alternative options may need to be considered, such as seeking to reclassify that land, rather than opting for the section 88K route.
Authors: Breellen Warry & Georgia Appleby
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