In New South Wales, the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
Section 88K of the Conveyancing Act 1919 deals with the power of the Court to create easements.
The Court in making an order of this nature will consider the use of the land having the benefit of the easement and whether it is inconsistent with the public interest, whether 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 that will arise from imposition of the easement, and whether all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
The Court is required to specify the nature and terms of the easement.
The Court is required to provide for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable.
The costs of the proceedings are payable by the applicant.
For an obligation free discussion please contact our office on (02) 9633 1826 or email reception@mcauleylawyers.com.au