Arinson Pty Ltd v City of Canada Bay Council

Arinson Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the creation of an easement under section 88K of the *Conveyancing Act 1919* (NSW). The dispute centred on whether the appellant was entitled to compensation for the imposition of the easement, which was granted to the City of Canada Bay Council (the respondent) over the appellant's land.

The primary legal issue before the Court of Appeal was whether there were "special circumstances" within the meaning of section 88K(2)(b) of the *Conveyancing Act 1919* that would justify the court dispensing with the requirement to pay compensation to the appellant. The court also considered the onus of proof in establishing such special circumstances.

The Court of Appeal affirmed the primary judge's finding that no special circumstances existed to warrant dispensing with compensation. The court reasoned that the purpose of section 88K was to facilitate the creation of easements for public benefit, but it also provided for compensation to protect the rights of landowners. The onus lay on the party seeking to dispense with compensation (in this instance, the Council) to demonstrate the existence of special circumstances. The court found that the Council had failed to discharge this onus, as the circumstances presented did not fall within the narrow ambit of what could be considered "special" in this context.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.