Easements Through Neighbouring Land
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RUR AL BRIEF May 2007 Issue Easements Through Neighbouring Land We have commented in a previous edition of the Rural Brief that Section 88K of the Conveyancing Act is a useful tool to employ when an easement is needed through the land of another who is not prepared to grant the easement. T here are any number of reasons why an easement may be needed – for example, vehicular access otherwise available in the past to reach a landlocked by the plaintiff to obtain the easement but those attempts have failed; (e) if the answer to each of the above questions lot may no longer be available, access may be needed is ‘yes’, whether the court should exercise through the neighbour’s land for services such as its discretion to impose an easement on the electricity, water, drainage, etc. intervening land; (f) what compensation, if any, should be payable; The 2006 case of Swann v Spiropoulos was such a case (g) is there any reason why legal costs of the which dealt with the situation where, in a rural setting, intervening land owner should not be payable by informal vehicular access which had been available to a the plaintiff. lot for many years was denied by the new owner of the intervening land. The answer to questions (a)-(d) obviously depend on the facts of each case; suffice it to say, however, that In the course of the judgement the judge set out the compliance by a plaintiff with (d) is critical. legal tests to be considered in a Section 88K application: In the case mentioned above, the court granted (a) whether the easement is reasonably necessary for the easement for carriageway on payment of the effective use or development of the plaintiff’s compensation as the plaintiff was able to show that he land; could not make effective use of his land without the (b) whether the use of the plaintiff’s land in accordance easement, that he had endeavoured over a long period with the easement will not be inconsistent with the to negotiate the granting of an easement and that he public interest; had considered alternative access routes. (c) whether the grant of the easement can be It should also be noted that the general rule in Section adequately compensated for; 88K proceedings is that the plaintiff should pay the (d) whether all reasonable attempts have been made intervening land owner’s legal costs. Transactions by Holders of Jointly Held Water Access Licences T his article comments on dealings undertaken by one of a number of co-holders (as tenants in common) of a Water Access Licence (“WAL”) under the Water another access licence all or part of his rights or his water allocation under the co-held access licence. Dealings such as these would be easier if separate Management Act 2000 (“WMA”). Apart from dealings access licences were held by each co-holder with each under S.71M (Transfer of Access Licences) and S.71N access licence referring to the same works approval. (Term Transfers of entitlements under Access Licences) And there is no reason why that should not occur in the consent of all co-holders to a dealing by one of them the case of the conversion of Authorities under the is required [eg S.71Q (Assignment of rights under Access Water Act 1912 to WALs under the WMA as just that is Licence) and S.71T (Assignment of water allocations contemplated by the WMA at Schedule 10 Clause 5(3) between Access Licences)]. of the Act. [Section 74 also deals with a holder exiting Further, in the case of dealings under S.71Q and S.71T, a co-held access licence but this should not affect the the reduction in the share component or water account operation of Schedule 10 Clause 5(3)]. as the case may be will result in a pro rata reduction of Of course, there may be contractual issues that bind the share component or water account balance across the co-holders of the Authority and, as a result, bind all co-holders, thus requiring a number of balancing the holders of the individual access licences that replace transfers within the “transferring” WAL or water the Authority, as to how those access licences can be account to restore the share components of the non dealt with. But that is another matter which should not transferring co-holders to their original holdings. interfere with the operation of Schedule 10 Clause 5(3). Obviously, it is critical for non transferring but The bottom line is that the WMA does appear to consenting co-holders to monitor the transaction provide for the replacement of the interest of each of closely to ensure that the units of share component or the various holders of an Authority under the Water the megalitres (as the case may be) to which they are Act 1912 by a separate access licence in the name of entitled are not reduced as a result of a transaction in each co-holder for the quantity of water allocated to which one co-holder desires to assign to the holder of that holder for use on his land. Rural Brief - May 2007 Issue Wind Farms Wind farms have been established at a number of locations throughout NSW and applications will, no doubt, be made for approvals for further developments. The definition of a tax lawyer is someone who is good with tax planning but who doesn’t have enough personality to be an accountant. Acknowledgment - “The Jokes on Lawyers” (Ross) climate change whilst providing for additional power generation for an increasing population, sustainable development as a principle in the development of new energy resources, the benefits of using renewable energy sources and balancing development with preservation of the health diversity and productivity of the environment for the benefit of future generations. The Guardians argued that the insertion of 62 turbines into the landscape across the natural view corridors from Taralga village W ind farms are in rural areas, often with hilly terrain, and proposals for their development more often than not draw community objections based primarily on visual pollution. “fundamentally and unacceptably alters the setting of the village in its landscape”. They said that the turbines are “alien industrial structures” which destroy the historical context and landscape In the recent (Feb 2007) case of Taralga Landscape Guardians Inc. setting of the village. They also argued against the development on v. Minister for Planning and RES Southern Cross Pty Ltd heard in the basis of noise impact, flora impacts (threatened native orchid the NSW Land and Environmental Court the Court considered a and native grassland) and fauna impacts (wedge tailed eagles and challenge by Taralga Landscape Guardians Inc. (“the Guardians”), bats lived in the area and risked flying into the turbines and two a local community group, to the Minister’s decision to substantially threatened grassland reptiles would be affected by land clearing for approve the development application of RES Southern Cross Pty Ltd turbines sites, access roads etc). (“Southern Cross”). The application related to the construction and operation of 62 wind turbines, each consisting of a 65m tower and The Court found as follows: 3 x 45m long blades, with supporting infrastructure. 1. The intrusion of turbines into the landscape was acceptable. The wind farm was to be built on ridge lines stretching about 11km 2. Although there would be a change to the village’s outlook, the across a number of privately owned rural land holdings the owners broader public interest must outweigh this impact. of which had entered into a commercial relationship with Southern 3. That save where the Court thought it appropriate for Southern Cross, and one parcel of Crown land. Cross to buy two properties which were sufficiently adversely affected by the proposals, in general no compensation was There is no opportunity in this brief report to comment on all of payable to objecting landowners for a lowering of amenity given the issues raised in this case which were dealt with at length in the that the development, on privately held land, was permitted judgment; accordingly, we have been selective in the matters discussed. development . 4. In some instances Southern Cross should carry out landscaping Taralga Village was classified by the National Trust in 1981 to lessen the visual impact of the development on properties. principally because of the existence of fairly well preserved stone buildings conveying “quite well the feelings of modest country 5. Neither flora nor fauna impacts were sufficient to disallow the town architecture of the 1850’s and 1860’s”. The whole impression development but, where appropriate, conditions of consent to of the town was said to be one of “buildings within landscape”. the development application should be altered to ameliorate The turbines of the proposed wind farm would be seen from the impacts. village and its surrounding area. In general, the judge concluded that he was satisfied that the overall public benefits of the proposal outweighed any private disbenefits The Court noted the policy framework within which the either to Taralga community or specific landowners. He was also development application was made – evidence of climate change, satisfied that there was no rational basis on which to require deletion difficulty facing governments in dealing with implications of of any of the turbines originally proposed. KEMP STRANG MEMBER OF THE KENNEDY STRANG LEGAL GROUP LEVEL 16, 55 HUNTER STREET, SYDNEY NSW 2000 GPO BOX 475 SYDNEY NSW 2001 DX 605 SYDNEY P. +61 2 9225 2500 F. +61 2 9225 2599 Contact Paul Frederick (61 2) 9225 2709 AFFILIATED FIRMS PRACTISING SEPARATELY IN SYDNEY • MELBOURNE • BRISBANE • ADELAIDE • PERTH The Kemp Strang Rural Brief is intended to keep readers abreast of current legal and firm developments. It is not to be used or relied upon as a substitute for professional advice. Before acting on any matter, readers should consult with their advisers.