Tout v Johnson

The case of Tout v Johnson involved the plaintiff, Tout, seeking an easement over a track on the defendants’ land to obtain access to a public road. The plaintiff's land, used for residential and rural purposes, was rendered inaccessible due to heavy rainfall, necessitating the repair of the track. The easement sought would have allowed the plaintiff to undertake the necessary works on the track to restore access to the public road. The primary issue before the court was whether the easement sought was reasonably necessary for the effective use or development of the plaintiff's land, and if the use or development of the land with the easement was substantially preferable to without it.

The court considered the statutory criteria outlined in section 88K(1) of the Conveyancing Act 1919 (NSW), which includes assessing the necessity of the easement for the effective use or development of the dominant tenement and the relative preference for the use or development of the land with the easement. The court found that the plaintiff had not adequately demonstrated that the easement was reasonably necessary for the effective use or development of her land. Furthermore, the court noted significant deficiencies in the evidence presented regarding the costs of the works required on both the plaintiff's and the defendants' land to facilitate access. Consequently, the plaintiff failed to meet the statutory requirements for the grant of an easement.

The court held that the plaintiff's application for an easement was not substantiated by the evidence and did not satisfy the criteria set out in the Conveyancing Act. Consequently, the plaintiff's application was dismissed, and no easement was granted. The court emphasised the importance of providing comprehensive evidence to establish the necessity and preference for the easement as required by the legislation.