Deering v Attard

In the matter of Deering v Attard, the Supreme Court of New South Wales was tasked with determining the existence of an easement over the defendant’s land, which had been used by the plaintiff and his predecessors in title for over two decades. The plaintiff sought a declaration that an easement by necessity and prescription over the defendant’s land was in place, to facilitate continued access to his property. The defendant contested the existence of such an easement, asserting that its creation would result in unreasonable interference with his property rights.

The central legal issue before the court was whether the proposed easement was "reasonably necessary for the effective use" of the plaintiff’s land, as required by section 88K(1) of the Conveyancing Act 1919 (NSW). The court needed to assess the balance between the necessity for the easement to the plaintiff and the potential interference it would cause to the defendant’s property rights. The court considered the nature and extent of the interference, including noise, light, and vibration, against the necessity of vehicular access to the plaintiff’s property.

The court held that the plaintiff had not discharged the onus of proving that the easement was reasonably necessary within the meaning of section 88K(1). The court found that an alternative means of vehicular access was available to the plaintiff by constructing a driveway wholly on his land, thereby mitigating the necessity for the proposed easement over the defendant’s land. Consequently, the plaintiff’s claim for an easement was dismissed.