Imposing an Easement: The Court requires that it must be 'reasonably necessary'
In the case of Govindan-Lee v Sawkins  NSWSC 328, Govindan-Lee (the Plaintiff) sought an easement on land owned by Sawkins (the Defendant) in order to improve motor vehicle accessibility to their own land. In applying s 88K of the Conveyancing Act 1919 NSW, the Court found that the Plaintiff bore the burden of proving that the easement was ‘reasonably necessary’ for the vehicle access to their land. Furthermore, the Court also took into account the effect the proposed easement would have on other parties and the land being burdened. The Court found that because there were valid alternatives to the proposed easement for the Plaintiff, the case must be dismissed.
The Plaintiff was the owner of 4 Duneba Place and the Defendant was the owner of 5 Duneba Place in Frenchs Forest. The Plaintiffs gained motor vehicle access to their land by way of a concrete driveway which was partially constructed on the Plaintiff’s land and partially on the Defendant’s land. This easement was one of several in relation to both properties.
Disputes arose in relation to the use of the driveway which provided difficulties for the Plaintiff in accessing 4 Duneba Place.
Was the imposition of an easement ‘reasonably necessary’?
When determining whether an easement is ‘reasonably necessary’ the Court will consider any alternate options open to the Plaintiff. Further, the Court applied Moorebank Recyclers Pty Ltd  which ruled that ‘reasonably necessary’ meant something more than just preferability or desirability over the alternate means available. However, ‘reasonable necessity’ did not require proving absolute necessity.
In applying these principles, the Court acknowledged that where a house is a substantial distance away from the street, vehicular access to one’s property is reasonably required. However, the Defendant contended that alternative options were available to the Plaintiff. These included widening the driveways of other easements or removing the Plaintiff’s garden to extend the driveway onto 4 Duneba Place. The Court ruled that these options were valid and hence the Plaintiff’s proposed easement imposed on the Defendant’s land was not ‘reasonably necessary’.
Effect of Easements on Other Parties
The Court must also consider the effect of the proposed easement on those parties who grant or suffer the burden of the easement. The Plaintiff’s proposed easement was narrow in the area near the Defendant’s garage (no more than 600mm). Furthermore, the Defendant produced evidence that in order for a car to access 4 Duneba Place, the Defendant’s wife would have to park no more than 800mm away from a rock face. The Court ultimately found that the proposed easement would significantly restrict the Defendant’s ability to use their land for parking vehicles.
Burden of Proof
The Court emphasised that the party proposing an easement has the onus of showing that the easement is reasonably necessary. In this case the Plaintiff claimed that the alternatives proposed by the Defendant were financially unfeasible. However, the Plaintiff did not provide sufficient evidence to substantiate this claim. Thus the Court could not rule in the Plaintiff’s favour.
What are the lessons learnt?
There are two key messages to note from this case:
- Parties seeking to impose an easement should explore alternate options and provide evidence as to why such alternatives are unreasonable or unfeasible. Not doing so may be fatal to a case.
- The parties should consider the effect the easement will have on those who are granting or suffering the burden of the easement. The greater the burden, the stronger the case required to show the necessity of the easement.
 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd  NSWCA 445
Gary Newton, Partner
Henry Yuan, Paralegal
Khushaal Vyas, Law Clerk