Easement access to a new development can be a contentious issue in property law. RMB Lawyers Associate and Local Government Coordinator explains:
Easements are governed by terms which are either prescribed under Schedule 8 of the Conveyancing Act 1919 or are unique terms drafted by a lawyer or surveyor.
In assessing a development that relies on an existing easement, regard must be had to whether the proposed development will intensify the use of the easement and therefore, whether landowner consent is required for the intensification.
What is land to which a development application “relates”?
In the case of North Sydney Council v Ligon 302 Pty Ltd [1996] 137 ALR 644 (“Ligon”), the High Court considered what is land to which a development application “relates”.
In Ligon, a development application was lodged with North Sydney Council in May 1994 for proposed development on the North Sydney Club site. The proposed development sought to extend the club premises and to add a 10 storey residential block. Access to the development site was via various rights of carriageway as well as rights of footway.
The easements in question were across land owned by Century Plaza. There were no upgrading works proposed to the easement sites.
The High Court held at [35]:
“The development application relates solely to the club site. The use of the Century Plaza land to give access to the club site is an existing use and, unless that use be intensified, no question of consent to a development application of the Century Plaza land will arise.”
What is the effect of Opera Properties?
In the case of Opera Properties v Northern Beaches Council & Anor [2017] NSWLEC 1507, the applicant appealed the refusal of a development application for a staged development which relied on an existing right of carriageway (“ROC”). No works were proposed to the ROC as part of the proposal, however the proposal did seek to extend the benefit of the ROC to additional properties which would be created as part of the development.
The ROC in Opera Properties was not governed by the statutory terms in Schedule 8 of the Conveyancing Act. Instead, the ROC was governed by unique and restrictive terms which specifically sought to limit the number of approved dwellings on the benefitted lots. The proposed development would increase the number of dwellings on the lots having the benefit of the ROC.
The terms of the ROC were set out in Opera Properties at [19]:
"Full and free rights of the body in whose favour this easement is created and every person authorised by it and falling within the definition hereunder of 'authorised persons' to go, pass and repass at all times and for all purposes with or without horses or vehicles or both over land indicated herein as the servient tenement and for the purposes aforesaid 'authorised person' shall be limited to:-
- Pedestrian members of the public;
- Persons riding horses;
- Motor vehicles (but not trucks exceeding 8.2 tonnes in weight) towing horse trailers and actually being used for the purposes of horse transportation only;
- Cyclists (but excluding motor cyclists);
- Emergency vehicles;
- Every person authorised by Pittwater Council for bona fide purposes in connection with this easement including the employees, agents, contractors and licensee of Pittwater Council; and
- Owners, occupiers, invitees and all other visitors of and persons requiring lawful access to the approved dwelling.
For the purposes of this clause "approved dwellings" shall mean:-
a. A maximum of 1 dwelling on Lot 2 in DP 383009;
b. A maximum of 1 dwelling on Lot 1 in DP 383009;
c. A maximum of 3 dwellings on Lot 5 in DP 124602;
d. A maximum of 1 dwelling on Lot 2 in DP 816070.
As such lots are shown on the plans annexed and marked "C".
No other persons other than authorised persons may use the easement without the owner of the land first obtaining approval in writing from Pittwater Council."
At [117], Commissioner Dickson found that the intensification of the use of the ROC constituted development for the purpose of clause 49 of the Environmental Planning and Assessment Regulation 2000 and therefore, owner’s consent was required from the burdened lot in support of the development application.
What do we learn from Opera Properties?
In determining whether a proposal will intensify the use of the easement, regard should be had to the nature of the proposed development, its impacts and the terms of the easement in question.
For example, the ROC in Opera Properties provided clear and distinct restrictions as to the authorised persons who could use the easement. On that basis, it was clear that the proposed development would intensify the use of the ROC.
If you would like to speak to a lawyer who specialises in Easement Access or Property Law, please contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on ourwebsite.