Easements created by Court Order

The Land and Environment Court or Supreme Court may make an order to create an easement over land including:

Easements for encroachment

The Land and Environment Court may make its own vesting order or make an order directed to the parties in the dispute, to create an easement to permit an encroachment to remain (see sections 3(2) and 8 Encroachment of Buildings Act 1922).

The Court will consider the following matters (among others) when making an order:

  • the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be
  • the situation and value of the subject land, and the nature and extent of the encroachment
  • the character of the encroaching building, and the purposes for which it may be used
  • the loss and damage which has been or will be incurred by the adjacent owner
  • the loss and damage which would be incurred by the encroaching owner if the encroaching owner was required to remove the encroachment and
  • the circumstances in which the encroachment was made.
 

(see section 3(3) Encroachment of Buildings Act 1922).

Easements under section 88K Conveyancing Act 1919

Section 88K Conveyancing Act 1919 empowers the Supreme Court to impose an easement over a parcel of land provided the easement is reasonably necessary for the effective use or development of another parcel of land that will gain the benefit.

The Court must determine that:

  • use of the land in accordance with the easement will not be inconsistent with the public interest
  • the owner of the land to be burdened by the easement can be adequately compensated for any loss or other disadvantage caused by imposition of the easement and
  • all reasonable attempts have been made by the applicant to obtain the easement by agreement with the owner of the land sought to be burdened but have been unsuccessful.

Court Order

The court order must identify the site of the easement by reference to a deposited plan of survey suitable for lodgment in NSW LRS. As an alternative a compiled/sketch plan annexed to a Request form 11R may, if it complies with the compiled plan guidelines, be acceptable.

For further requirements see section 88K Conveyancing Act 1919.

Registration of easement

An easement imposed by a Court only takes effect once it is registered by the Registrar General. For Torrens Title land a sealed copy of the Court Order should be annexed to a Request form 11R requiring the Registrar General to give effect to the Court Order. For Old System land the Court Order should be registered in the General Register of Deeds.

Variation, modification or release

An easement imposed by the Court, like other easements, may be released or varied by the parties concerned, or modified or extinguished by the Court pursuant to section 89 Conveyancing Act 1919.

For information relating to varying or modifying easements, see Variation of Easements.

For information relating to extinguishment of easements, see Extinguishment by Court Order.

For Old System land, a sealed copy of the Court Order should be registered in the General Register of Deeds.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/

 

Publication Date: January 2025