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NSW Government Bulletin

25 November 2020


Published by:

Georgia Appleby

NSW Government Bulletin

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 [2020] 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:

  • that the use of the land having the benefit of the easement will not be inconsistent with the public interest
  • that the owner of the land can be adequately compensation for any loss or disadvantage arising from the imposition of the easements
  • that all reasonable attempts have been made by the applicant to obtain the easement.

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

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 [2020] 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 [2000] 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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Published – articles, papers, reports

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Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156
JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 4 of Environmental Planning and Assessment Act 1979 (EPA Act) – whether decisions authorise use of land – purpose of use of land – whether for recreation area – whether development consent required – whether development for purposes of recreation area on a public reserve under the control of or vested in the council – whether continuance of a use of land for a lawful purpose – whether enlargement, expansion or intensification of use – whether use abandoned – whether use unlawfully commenced – development consent not required for use – no breach of Part 4 of EPA Act JUDICIAL REVIEW – council decisions to conduct dog off-leash area trial and to allow dogs on-leash at beach – threatened seagrass population and threatened seahorse species and their habitats – application of Part 5 of EPA Act – whether council decisions approve an activity – duty to examine and take into account environmental impact of activity – whether council breached duty in approving dog on-leash activity – duty to obtain, examine and consider EIS for activity likely to significantly affect environment – whether council breached duty in approving dog off-leash activity and dog on-leash activity – whether each activity likely to significantly affect the environment – breaches of Part 5 of EPA Act.

Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295
CIVIL PROCEDURE – parties – vexatious litigants – fourth application to set aside vexatious proceedings order – application dismissed CONTEMPT – allegation of contempt of court – whether enforcement of costs order in breach of undertaking given to the Court – no leave sought to bring proceedings – Vexatious Proceedings Act 2008 (NSW) s 14 – application dismissed CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) s 78B – whether proceedings involve a matter arising under the Constitution or involving its interpretation – where mere assertion of invalidity of Vexatious Proceedings Act 2008 (NSW) by reason of s 109 of the Constitution – whether frivolous or unarguable contention – no obligation to stay proceedings until s 78B notices given.

Burns v Folau [2020] NSWCATAD 287
HUMAN RIGHTS — Tribunals, commissions and other authorities — NCAT — whether leave required for complaint to proceed — principles applying to grant of leave HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) — homosexual vilification WORDS AND PHRASES — meaning of “vexatious” in s 92 of the Anti-Discrimination Act 1977 (NSW).

Samandi v NSW Department of Communities and Justice [2020] NSWCATAD 286
ADMINISTRATIVE LAW – Government Information (Public Access) Act – GIPA – Reasonable searches for information – lack of onus on any specific party – whether document held.

Attorney-General of NSW v George [2020] NSWSC 1621
ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional error — whether the defendant’s circumstances constituted ‘manifest injustice’ - whether the State Parole Authority sufficiently considered mandatory considerations ADMINISTRATIVE LAW — Procedural Fairness — whether the Commissioner was afforded the opportunity to provide adequate submissions to the State Parole Authority.

Vinciguerra v Commissioner of Police [2020] NSWCATAD 284
GIPA Act – Government Information – Access – Reasonable Search.

Foundations Care Ltd v Children’s Guardian (No. 2) [2020] NSWCATAD 258
ADMINISTRATIVE REVIEW – Child Protection – Application by applicant for non-publication of applicant’s name and identifying material – Application by respondent for redaction of material identifying children – Application by respondent for an order permitting publication generally of information to which s 65(2) of the Civil and Administrative Tribunal Act 2013 applies – Whether Tribunal’s power to provide consent to publication of names extends to power to permit any person to publish certain names.


Australia’s Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020
Senate 12/11/2020 - Consequential on the Australia's Foreign Relations (State and Territory Arrangements) Bill 2020, the bill amends the Administrative Decisions (Judicial Review) Act 1977 to provide that decisions made under the Australia's Foreign Relations (State and Territory Arrangements) Act 2020 are not subject to judicial review; and Foreign Acquisitions and Takeovers Act 1975 to authorise the disclosure of protected information.

Australia’s Foreign Relations (State and Territory Arrangements) Bill 2020
Senate 12/11/2020 - Introduced with the Australia’s Foreign Relations (State and Territory Arrangements) (Consequential Amendments) Bill 2020, the bill establishes a legislative scheme for Commonwealth engagement with arrangements between State or Territory governments and foreign governments, and their associated entities.

Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020
Assent Act no: 95 Year: 2020 10/11/2020
Amends the: Commonwealth Electoral Act 1918 to: clarify the interaction between federal, state and territory electoral funding and disclosure regimes following the High Court decision in Spence v Queensland [2019] HCA 15; make technical amendments in relation to entity registration and public election funding rules; and allow a senior Australian Electoral Commission staff member rather than a senior Divisional Returning Officer to be on the Redistribution Committee for the Australian Capital Territory; Commonwealth Electoral Act 1918 and Referendum (Machinery Provisions) Act 1984 to amend various aspects of voting and scrutiny processes; and Referendum (Machinery Provisions) Act 1984 to extend the electronically assisted voting method to Australians working in Antarctica.

Electoral Legislation Amendment (Miscellaneous Measures) Act 2020
09/11/2020 - Act No. 95 of 2020 as made

Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020
11/11/2020 - This instrument amends the Federal Court and Federal Circuit Court Regulation 2012 to increase the application fees charged by the Federal Circuit Court for migration litigants, and introduce a partial fee exemption which allows individuals to pay a reduced application fee where paying the full fee would cause financial hardship.


Bills introduced – 13 November 2020

Bushfires Legislation Amendment Bill 2020
Mandatory Disease Testing Bill 2020
Appropriation (Parliament) Bill 2020
Appropriation Bill 2020

Casino Control Amendment (No Compensation) Bill 2020
ICAC and Other Independent Commissions Legislation Amendment (Independent Funding) Bill 2020
Independent Commission Against Corruption Amendment (Property Developer Commissions to MPs) Bill 2020
Law Enforcement (Powers and Responsibilities) Amendment (Drug Detection Dogs and Strip Searches) Bill 2020
Prevention of Cruelty to Animals Amendment (Increased Penalties) Bill 2020
Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour) Bill 2020

Bills revised following amendment in Committee
Bushfires Legislation Amendment Bill 2020
Drug Supply Prohibition Order Pilot Scheme Bill 2020
Liquor Amendment (24-hour Economy) Bill 2020
Mandatory Disease Testing Bill 2020
Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020

Bills passed by both Houses of Parliament – 20 November 2020
Bushfires Legislation Amendment Bill 2020
Drug Supply Prohibition Order Pilot Scheme Bill 2020
Liquor Amendment (24-hour Economy) Bill 2020
Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Georgia Appleby

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