The Facts
RTA land sold to private buyer
This case concerned a property in south-western Sydney. The property was landlocked by three neighbouring houses to the south/east and by a council reserve to the north/west. Behind the council reserve was a footpath that ran along a river and was used by the public as a walking track.
For many years, the property had been owned by the Roads and Traffic Authority (RTA), which had plans to build a road along the river. However, the road was never built and the RTA eventually sold the land to a private buyer.
Attempts to negotiate with neighbours for access to property
The landowner attempted to gain vehicle access to the property from the south/east but was unsuccessful in his negotiations with the neighbouring landowners. He then requested that the council grant an easement to create a driveway across the council reserve to the north/west, adjacent to the footpath.
The council denied the request and the landowner made an application to the Supreme Court of NSW.
Expert commentary on the court's decision
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:
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.