Gordon v Lever (No 2)

Gordon (appellants) appealed to the Court of Appeal of New South Wales against orders made by the primary judge in relation to an application under section 88K of the Conveyancing Act 1919 (NSW) to impose an easement over land owned by the respondents. The dispute concerned the terms and conditions of a proposed easement for access, which the appellants argued were uncertain in their practical operation and effectively required the use of an alternative access route that would contravene the Crown Land Management Act 2016 (NSW).

The Court of Appeal was required to determine whether the terms imposed on the easement were sufficiently certain to be enforceable and whether they were "reasonably necessary" for the beneficial enjoyment of the dominant tenement, as required by section 88K. Specifically, the court had to consider if the terms, which mandated the use of an alternative access route in certain circumstances, were practically assessable and if that mandated route would lead to a breach of other legislation.

The Court of Appeal found that the terms imposing the easement were uncertain in their practical operation. The court reasoned that the conditions for using the alternative access route were not readily capable of assessment, and that in substance, the terms required the use of an alternative route that would involve traversing Crown land in breach of the Crown Land Management Act 2016. Consequently, the appeal was allowed in part, with the orders of the primary judge being varied to reflect the correct annexure for the easement, and the respondents were ordered to pay the appellants' costs of the appeal.