City of Canterbury v Saad

The Court of Appeal of New South Wales, comprising Beazley P, Meagher and Leeming JJA, considered an appeal concerning the creation of an easement under section 88K of the Conveyancing Act 1919. The dispute involved the City of Canterbury (the applicant) seeking to impose an easement over land owned by Mr. Saad (the respondent). The primary contention revolved around whether the proposed easement was "reasonably necessary" for the effective use or development of the dominant tenement, and whether its imposition was consistent with the public interest, particularly given that the servient tenement was community land.

The court was required to determine whether the primary judge erred in refusing to grant the easement. Specifically, the appeal raised questions about the proper application of section 88K(1) of the Conveyancing Act 1919, focusing on the threshold of "reasonably necessary" and the court's discretion in granting such easements, including the relevance of the applicant's knowledge of the landlocked nature of the dominant tenement and whether it was purchased at a discounted price. Furthermore, the appeal examined the application of section 88K(2)(a), concerning whether the use of the land benefiting from the easement was inconsistent with the public interest, and whether the primary judge had improperly considered surrounding land in this assessment.

The Court of Appeal dismissed the appeal, upholding the primary judge's decision. The court reasoned that the threshold of "reasonably necessary" under section 88K(1) requires more than mere convenience; it necessitates a degree of utility that is substantial and not merely speculative. The court found that the applicant had not demonstrated that the proposed easement met this standard. Regarding the public interest under section 88K(2)(a), the court affirmed that the primary judge was entitled to consider the nature of the servient tenement as community land and that the assessment of public interest was not vitiated by any error in considering surrounding land. The court concluded that the discretion to grant the easement had been correctly exercised by the primary judge.