M Salazar Properties Pty Ltd v Jeffs

At first instance, the appellant had been granted an easement over the respondent’s property pursuant to s 180 of the Property Law Act 1974, subject to certain conditions. On appeal, the appellant challenged those conditions, while the respondent cross-appealed on the basis that the terms of the proposed easement had been insufficiently clear, preventing the court from having jurisdiction to grant it. The respondent argued that the lack of clarity stemmed from the proposed easement being subject to any changes which might be required by the relevant local council. Justice Flanagan, giving the Court of Appeal’s judgment, concluded that the task required by s 180 necessitated a sufficiently specific proposal in respect of an easement; a proposed statutory easement which left itself subject to subsequent modification by a planning authority did not satisfy the requirements of s 180.

Flanagan and Boddice JJA and Kelly J

17 December 2024

The proceedings concerned three adjacent lots; because of the slope of the land, a proposed redevelopment of the appellant’s lot required the grant of an easement for drainage purposes through the respondent’s property. [6]–[9]. The respondent ultimately did not accept any of the six offers made by the appellant in respect of the proposed easement. [10]–[17].

At first instance, the easement was granted on the basis that it would be 27 m2. [31]–[47]. Flanagan JA, writing for the Court of Appeal, concluded that this was not the relief which had in fact been sought by the appellant and was not what was sought by the appellant on appeal; the easement sought was one which would remain subject to variation at the local council’s discretion. [82]–[83]. The question which arises for reporting is whether an easement may be granted under s 180 Property Law Act 1974 which remains subject to possible variation by a local council or other authority.

The requirements of s 180 Property Law Act 1974

Section 180 Property Law Act 1974 “seeks to balance competing interests of landowners, where one party refuses to consent to something to which they ought to consent”. [65]. In achieving that balance, the section creates safeguards within itself to protect the interests of landowners who would be affected by the section’s operation; s 180’s requirements must be met. [67].

Modern planning law means that interplay between courts and local councils is inevitable in applying s 180, but that does not change the requirement for clarity in an application which seeks the exercise of the Court’s power under s 180. [74]–[80].

The better approach in respect of a proposed development requiring a statutory easement would be to obtain development approval from the relevant council, that approval being conditional on a grant being made by a court under s 180. Seeking an easement the terms of which are effectively left to a local council leaves the Court with no foundation upon which to assess whether the requirements of s 180 were satisfied (for example, what compensation for the easement is appropriate). [81].

Disposition

The appeal was dismissed and the cross appeal allowed. The appellant’s behaviour in the proceedings resulted in them being ordered to pay the respondent’s costs on a fixed (but effectively, indemnity) basis. [94]–[111].

B Wilson of Counsel