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Water & land

I have an easement, covenant or access dispute

Easements and covenants are creatures of precise drafting, and disputes usually begin where the words run out: a driveway used more intensively than intended, a drainage line that needs upgrading, services that must cross a neighbour's land, or a covenant that blocks a development. New South Wales law provides both negotiated and court pathways, including the power to impose an easement where one is reasonably necessary.

Jurisdiction
New South Wales
Page type
Situation guide
On this page

This page may be relevant if:

  • A neighbour disputes the use, width or maintenance of an easement
  • Your project needs an easement a neighbour will not grant
  • A covenant restricts what you can build or how land can be used
  • You need temporary access over adjoining land for works

What this usually means

  • The scope of an easement is set by its terms and the plan it sits on; use beyond that scope, and obstruction of lawful use, can both be restrained.
  • Where a development or the effective use of land reasonably requires an easement and agreement cannot be reached, the Supreme Court can impose one under section 88K of the Conveyancing Act 1919, on conditions including compensation, and the applicant generally bears the costs.
  • Obsolete or obstructive easements and covenants can in some circumstances be modified or extinguished by the court.
  • Temporary access to a neighbour's land to carry out work can be obtained by agreement or, where agreement fails, under the Access to Neighbouring Land Act 2000.

What commonly matters

  1. What the instrument grants

    The registered terms and plan, read with the title history, usually answer more of the dispute than either party expects.

  2. Negotiate before litigating

    A court-imposed easement can be ordered only if the court is satisfied that all reasonable attempts to obtain it by agreement have been made and have failed, so a documented, genuine negotiation, usually including a properly supported offer of compensation, is part of the case for any later application, not just a tactic.

  3. Compensation and costs

    Imposed easements come with compensation and, usually, the applicant paying the neighbour's reasonable costs; both belong in the feasibility arithmetic.

  4. Maintenance and conduct

    Many disputes are really about upkeep, drainage or behaviour; terms can often be reset by agreement without touching the grant itself.

How we help

  • Advise on the scope, validity and effect of easements and covenants
  • Negotiate grants, variations and access terms
  • Prepare and run section 88K and modification applications
  • Act in obstruction, encroachment and neighbouring access disputes

Related reading

This page is general information only and is not legal advice. It may not be current, and how the law applies depends on the specific facts. For advice on your situation, contact Stone & Pillar Legal.

Frequently asked questions

General information only, not legal advice. The position depends on your circumstances.

When will a court impose an easement under section 88K?

The Supreme Court can impose an easement under section 88K of the Conveyancing Act 1919 (NSW) only if the easement is reasonably necessary for the effective use or development of the land that will benefit from it, and the Court is satisfied that the use of that land will not be inconsistent with the public interest, that the owner of the burdened land and each other registered interest holder can be adequately compensated, and that the applicant has made all reasonable attempts to obtain the easement, or one having the same effect, without success. Where the Land and Environment Court has granted or modified a development consent on appeal, or such an appeal is pending, the appellant can ask that Court to exercise the same power. Reasonable necessity does not mean absolute necessity, but the applicant carries the onus, and the quality of the necessity evidence and the negotiation history both matter to the outcome.

Who pays for a section 88K application?

Generally the applicant, in more ways than one. The applicant usually pays compensation to the burdened owner for the easement, and in the ordinary course also pays the burdened owner's reasonable costs of the proceedings, because the applicant is seeking to acquire rights over someone else's land. Costs can be affected by the parties' conduct, including unreasonable refusals or offers. Those numbers belong in the development feasibility before the application is made, not after it succeeds.

My neighbour keeps blocking a right of way. What can I do?

Start with the instrument: the registered terms and the plan establish what the easement actually grants, including its width and permitted use, and many disputes resolve once that position is put clearly. If obstruction continues, the benefited owner can generally seek orders restraining the interference, and damages can be available for loss caused. A measured letter grounded in the title documents resolves a large share of these disputes before proceedings become necessary, and it also lays the foundation if court action is ultimately required.

Related situations

All situations

Where to start

An easement, covenant or access issue with a neighbour?

A preliminary review can identify the decision, the material available, any stated date and the questions requiring legal or expert assessment.

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