Access and Easements

To facilitate development the NSW government enacted laws to allow the Supreme Court and Land and Environment Court to grant easements where it is reasonably necessary for the use or development of land. Easements granted to date have included easements for access, easements for services and easements for construction, such as for swinging cranes and temporary scaffolding. 

It is now well established that where there is a good case for an easement, the easement will be granted.

• section 40 of the Land and Environment Court Act 1979 - 40 Additional powers of Court—provision of easements
• Land & Environment Court's - Practice Direction - section 40
• section 88K of the Conveyancing Act 1919 - 88K Power of Court to create easements

Extinguishment and variation of easements or covenants

There are legislative procedures that allow easements or covenants that are archaic or no longer capable of performance to be removed from title both administratively and by Court order. Council does not deal with issues relating to easements and covenants including creation, variation and extinguishment unless they are required for some public benefit.

Public Positive Covenants are often required by Council for the maintenance of stormwater systems.  Council is unlilkely to agree to the removal of a Public Positive Covenant unless the objective of having that covenant is achieved is a better way.

Access Orders

If easements are not necessary but temporary access is required over neighbouring land, for a legitimate reason, the Local Court may, on application, issue a Neighbouring Land Access Order.  The Local Court may specify such conditions in an access order as, in its opinion, are reasonably necessary in the circumstances.  These are civil proceedings.

Council is not the appropriate regulatory authority and does not become involved in applications under the Access to Neighbouring Land Act 2000.