Court imposed easements: key lessons for developers and landowners

The recent decision of Duggan J in St Mary & Angels Pty Ltd v [2026] NSWLEC 74 is a timely reminder of the Land and Environment Court of NSW's (LEC) power to impose an easement over land.

The decision highlights the circumstances in which a court may intervene when negotiations between neighbouring landowners have failed and provides useful guidance for both developers seeking easements and landowners responding to such requests.

The St Mary & Angels case

St Mary & Angels Pty Ltd (the developer) applied to the LEC for an order imposing an easement over Strata Plan 32407's land in Chester Hill, NSW. The purpose of the easement was to allow for stormwater discharge from the developer's property, over the neighbouring land, into the council's drainage system.

The LEC's power was enlivened because the developer had commenced an appeal against the council in relation to the deemed refusal of their development application.

The parties mediated and agreed that the easement ought to be imposed, but the LEC needed to consider whether or not an order should be made pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act) as per the provisions of s 40(4) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

Why was the easement necessary?

The following facts were relevant to the LEC's consideration:

1. The developer's land falls towards its northwestern boundary where it adjoins the Strata Plan's land.
2. Adjacent to the low point on the developer's land is a pipe drainage system for stormwater, that then runs with the fall of the land through the Strata Plan's land and then connects with the Council's drainage system.
3. The Council considers that it is not only desirable but necessary that stormwater be discharged via a gravity feed to Council's stormwater system.

The Court's findings

The LEC determined that the proposed use of the developer's land as a childcare centre, which is a development that is permissible with consent, will not be inconsistent with the public interest.

The LEC further considered that the Strata Plan could be adequately compensation for the imposition of the easement, by receiving payment of $85,000 which exceeded the assessment of $58,000 for the market value of the easement contained in an expert valuation report.

Finally, the LEC considered that all reasonable attempts to obtain the easement be agreement had been made but had been unsuccessful.

Ultimately, the LEC found that the imposition of an easement was reasonably necessary for the effective use or development of the benefitted land and orders were made to impose the easement accordingly.

When can a court impose an easement?

The decision provides a useful reminder of the circumstances in which courts may impose easements over land:

1. The Supreme Court of NSW has the power to impose an easement over land pursuant to section 88K of the Conveyancing Act 1919 (NSW).
2. The LEC has the power to impose an easement over land pursuant to section 40 of the Land and Environment Court Act 1979 (NSW) if the LEC has determined a Class 1 development appeal or a Class 1 development appeal is before it.
3. In dealing with an application under section 40, the LEC exercises the jurisdiction of the Supreme Court and the tests under section 88K apply.
4. A Court may only impose an easement over land if it is satisfied that:
   • the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement;
   • the use of the land having the benefit of the easement will not be inconsistent with the public interest;
   • the owner of the land to be burdened by the easement and each other person having an estate or interest in that land can be adequately compensated for any loss or other disadvantage that will arise from the imposition of the easement; and
   • all reasonable attempts have been made by the applicant (i.e. the OC) for the order to obtain thee easement or an easement having the same effect, but these attempts have been unsuccessful.
5. Should the Court be satisfied that the four elements contained within section 88K have been met, it has discretion as to whether an easement should be imposed - satisfaction of the section 88K elements does not compel the Court to grant an easement and the Court retains discretion in that respect.

Each of these above principles is subject to a significant body of case law.

What does this mean for developers?

A developer wishing to call upon the court's powers (whether that be the Supreme Court of the LEC) needs to consider how the legislative provisions and applicable case law applies, before launching proceedings.

Whether the court will ultimately impose the easement is factually driven and requires careful examination in each instance to determine whether an application is likely to succeed.

What does this mean for landowners?

Landowners faced with a request from a neighbouring developer should also consider the relevant principles and seek legal advice to ensure that their opposition or consent to the proposed easement is appropriately informed and, if the easement is ultimately imposed, they are adequately compensated.

Key takeaways

The St Mary & Angels decision demonstrates that courts are willing to impose easements where they are reasonably necessary to facilitate development and the statutory requirements are met.

For developers, the decision highlights the importance of early planning, evidence gathering and genuine attempts to negotiate with neighbouring landowners.

For landowners, it serves as a reminder that requests for easements should be carefully assessed and that compensation rights should not be overlooked.

Lander & Rogers regularly advises developers and landowners about applications under s88K of the Conveyancing Act and s40 of the LEC Act. If you would like assistance, please contact our Environment & Planning team.