Which case won?

casea
The case for the landowner
  • I have made genuine attempts to negotiate an easement from neighbouring properties, without success. I have correspondence to prove this.
  • By the council’s own admission, the local area is well serviced with open space which is adequate for public recreation. Granting the easement would have no effect on the public use of the land.
  • I engaged a registered valuer, who set the value of the easement at $54,000. I am offering to pay the council this sum, which is adequate compensation.
  • The land I bought is zoned residential. It’s in the public interest that I be able to develop and use the land in a way that is consistent with this zoning, which is why it’s necessary that an easement for vehicle access be granted.
caseb
The case for the council
  • The landowner was well aware when he bought the property that it was landlocked and did not have any vehicle access.
  • It is against the public interest to have an easement in the form of a permanent driveway imposed over community land.
  • It is not possible for the council to be adequately compensated for the loss or disadvantage to the community arising from such an easement.
  • The landowner has not made reasonable attempts to negotiate an easement with the other neighbouring properties.
  • The easement is not reasonably necessary for the effective use or development of the land.

So, which case won?

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Case A won. You were right!

How people voted
a56%
b44%

Expert commentary on the court's decision

“In order to establish reasonable attempts to obtain an easement, the applicant only needs to make an initial attempt by informing the person of the nature of the easement, offering some money and giving sufficient time to consider the offer. The applicant is not required to continue to negotiate with a person, continually making more concessions until they finally agree.”
Supreme Court finds in favour of landowner

In the case Samy Saad v City of Canterbury [2012] NSWSC 389, the Supreme Court found in favour of the landowner.

Mr Saad applied to the Supreme Court for an order under section 88K of the Conveyancing Act 1919. Section 88K provides that the court will make an order granting an easement if the easement is reasonably necessary for the effective use or development of the land. The court will only make such an order if they are satisfied that:

  • The order will not be inconsistent with the public interest
  • The owner of the burdened land can be adequately compensated
  • All reasonable attempts have been made to obtain an easement, but without success
Inconsistent with the public interest

The court held that even though the easement would reduce the amount of public land, this did not necessarily mean that the easement would be inconsistent with the public interest.

The court accepted that provision of an easement which permits vehicular access to occupiers of a dwelling on the property is consistent with the public interest in the use or development of the land for its designated purpose. In other words, the court is considering the public interest of the benefitted land, not the burdened land.

Adequate compensation for the value of the easement

Mr Saad offered to pay $54,000, which is the amount determined to be the value of the easement site by a valuer. The council claimed that it was not possible to be adequately compensated for the land because there was a lack of suitable available replacement land. As an alternative, the council said it wanted $86,400, rather than the $54,000 which Mr Saad had offered.

The court rejected the argument that there was no suitable replacement land, because it was not persuaded that the council would purchase alternative land even if it was available. In the absence of any contrary evidence as to the value of the land, the court held that $54,000 would be adequate compensation.

Reasonable attempts to obtain an easement

The court confirmed the case law on this issue, which provides that in order to establish reasonable attempts to obtain an easement, the applicant only needs to make an initial attempt by informing the person of the nature of the easement, offering some money and giving sufficient time to consider the offer. The applicant is not required to continue to negotiate with a person, continually making more concessions until they finally agree.

The court saw ample evidence that sufficient attempts had been made to negotiate the easement and on that basis, rejected the council’s submissions.

Council unsuccessfully appeals decision

The court was satisfied that all the requirements of Section 88K had been met and made an order in favour of Mr Saad granting the easement.

The council appealed that decision and the appeal was heard the following year, in City of Canterbury v Saad [2013] NSWCA 251. The appeal was unsuccessful and the council had to pay Mr Saad’s costs of the appeal.

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