Introduction In New South Wales, section 88K of the Conveyancing Act 1919 is the principal mechanism by which a court can impose an easement on a neighbour's land, even without that neighbour's consent. This article explains how the provision works, the key principles governing its application, and how recent cases have continued to shape the law in this area. What Is an Easement by Necessity? An easement by necessity arises where land is effectively landlocked or otherwise incapable of practical use without the benefit of some right over adjoining land. At common law, such easements are implied into grants of land where, without the easement, the grantee's land would be entirely inaccessible. However, implied easements are limited in scope and often difficult to establish. As an alternative, the broader, statutory mechanism is section 88K of the Conveyancing Act 1919 . Section 88K: The Court's Power to Impose an Easement Inserted into the Conveyancing Act 1919 in 1995, section 88K empowers the Supreme Court — and, in certain development-related circumstances, the Land and Environment Court (under s 40 of the Land and Environment Court Act 1979) — to impose an easement over land without the owner's consent. Section 88K(1) provides that the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. The power is conditional: all four preconditions in subsections (1) and (2) of section 88K must be satisfied before an order can be made. The Four Preconditions 1. Reasonably Necessary for Effective Use or Development This is the governing requirement. As Bryson J explained in Stepanoski v Chen (cited with approval in Samy Saad v City of Canterbury [2012] NSWSC 389), the primary purpose of section 88K relates to the public interest in effective land use — but that is not enough on its own to justify a positive exercise of the discretion; the effect on the servient land is also relevant and important. The leading elaboration of this requirement is found in Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 ( Rainbowforce ), decided by Preston CJ in the Land and Environment Court. A useful checklist of principles emerges from that decision: The requirement of reasonable necessity does not mean absolute necessity. The question is whether the easement is reasonably necessary for the effective — not merely convenient — use or development of the dominant land. "Effective" carries its ordinary meaning: serving to produce the intended result. The easement must be reasonably necessary for the effective use or development of the land itself , not merely for the current owner's personal enjoyment. The greater the burden imposed on the servient tenement, the stronger the applicant's case must be to justify a finding of reasonable necessity. The Court may impose an easement even where an alternative route exists; reasonable necessity does not demand there be no alternative. Reasonable necessity is assessed at the time of the hearing, not at the date of the application. These principles were reinforced in Arcidiacono v Owners of Strata Plan No 17719 [2020] NSWCA 269, where the NSW Court of Appeal held that reasonable necessity means the use or development of the land with the easement must be at least substantially preferable to use or development without it. A useful boundary case is Aussie Skips Recycling Pty Ltd v Strathfield Municipal Counci l [2020] NSWCA 292, where the proposed easement was found not to satisfy the requirement because it would enclose an area constituting 68% of the Council's land, making it incompatible with the continued beneficial ownership by the Council of the servient tenement. 2. Not Inconsistent with the Public Interest Section 88K(2)(a) requires the Court to be satisfied that the use of the dominant land — that is, the land having the benefit of the easement — will not be inconsistent with the public interest. Importantly, as Rainbowforce makes clear, it is the use of the dominant tenement, not the use of the easement on the servient tenement, that is the focus of this inquiry. The public interest requirement involves consideration of broader planning and development goals, including the implementation of planning criteria for the area. As observed in Samy Saad v City of Canterbury [2012] NSWSC 389, Parliament recognised that private development may be beneficial to the public, and the Act empowers the Court to facilitate such development while balancing competing private interests. There are, however, limits. Community land attracts heightened scrutiny, and courts have remarked that it would be rare that an easement over actively used community land would be considered to be in the public interest. 3. Adequate Compensation Section 88K(2)(b) requires the Court to be satisfied that the owner of the servient land can be adequately compensated for any loss or other disadvantage arising from the imposition of the easement. Critically, the Court must determine what compensation is payable at the time it makes the order. If it cannot do so, it has no power to grant the easement: Studholme v Rawson [2020] NSWCA 76 at [46]. Compensation is assessed by reference to the loss suffered by the servient tenement, not the benefit derived by the dominant tenement: Rainbowforce . Ordinarily, compensation covers three elements: The diminution in the market value of the affected land; Associated costs caused to the servient owner; and Losses arising from insecurity and loss of amenities — such as loss of peace and quiet, or loss of privacy from strangers using the easement. Any compensating advantages flowing from the easement must be credited against these losses: Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485. In exceptional cases where it is extremely difficult to assess compensation, but the applicant stands to derive a considerable benefit, compensation may be assessed as a percentage of the profits made: Wengarin , as later applied in Lonergan's case. 4. All Reasonable Attempts to Negotiate Have Failed Section 88K(2)(c) requires the Court to be satisfied that all reasonable attempts have been made by the applicant to obtain the easement, but those attempts have been unsuccessful. The precondition is designed to ensure that litigation is a last resort. As Rainbowforce sets out, the following principles apply: The applicant must make an initial genuine attempt to obtain the easement by negotiation, including a monetary offer. The applicant must sufficiently inform the servient owner of what is being sought and give that person an opportunity to consider their position. The applicant is not required to make endless concessions until consensus is reached. Once it is objectively apparent that further negotiations are unlikely to produce consensus within the foreseeable future, the applicant may be taken to have made all reasonable attempts. In Govindan-Lee v Sawkins (2016) 18 BPR 35,883, this element was satisfied even where the applicant made a monetary offer only after proceedings had commenced — though this approach may not be consistent with the provision's evident purpose of encouraging pre-litigation resolution. Who bears the costs? Section 88K(5) creates a default rule that the applicant bears the costs of the proceedings, unless the Court orders otherwise. This reflects the fact that seeking a court-imposed easement is an indulgence — a judicially endorsed interference with property rights — and the servient owner is entitled to have the preconditions tested. An "otherwise order" shifting costs to the servient owner requires something more than a mere refusal of a reasonable compensation offer. As the NSW Court of Appeal confirmed in Shi v ABI-K Pty Ltd [2014] NSWCA 293, a property owner is entitled to refuse consent, thereby putting the applicant to proof on all preconditions including public interest and reasonable necessity. The mere rejection of a reasonable offer does not, without more, justify a costs order against the servient owner. However, the courts have progressively identified conduct that will warrant a departure from the default rule: Making the proceedings unnecessarily expensive: Studholme v Rawson [2020] NSWCA 76; Rainbowforce . Actively pursuing defenses beyond merely putting the plaintiff to proof: Crawley v Baxter (No 3) [2023] NSWSC 955. Presenting patently false or manufactured evidence: Ross Bilton & Ors v Georgia Ligdas (Costs) [2016] NSWSC 1585. The significance of these principles was brought sharply into focus in Jeffrey v Adams [2023] NSWSC 1270, a recent decision involving a right of carriageway in rural NSW. The Jeffreys sought a deviation around an obstruction (a dam) that had blocked their existing right of way. The defendants not only resisted the claim without rational or legal basis but filed expert evidence on which the co-defendants also relied. The Court granted the easement, finding the alternative road was the most direct route around the dam and had been used historically without opposition. Given the defendants' active and baseless resistance, the Court departed from s88K(5) and ordered the defendants to pay the Jeffreys' costs. As the Court observed, the defendants' conduct prolonged the hearing and went beyond merely putting the plaintiffs to proof. Practical Implications A few practical points emerge from the case law: For applicants: The more generous and patient the applicant is in negotiations, the stronger their eventual application — and the better positioned they are to argue for a departure from the default costs rule if the neighbour acts unreasonably in the proceedings. For servient owners: Mere refusal of compensation does not attract a costs penalty. A servient owner is entitled to put the applicant to proof on all statutory preconditions. However, obstructive conduct, filing excessive evidence, or pursuing defenses with no proper legal foundation risks a significant adverse costs order. For developers: Section 88K applications are increasingly common, particularly in infill development contexts where access, drainage, and service easements are frequently needed across tight urban blocks. The Land and Environment Court may also grant easements as ancillary orders to development consent under section 40 of the Land and Environment Court Act 1979 (NSW), which offers an alternative avenue where the matter is already before that Court. Conclusion Section 88K of the Conveyancing Act 1919 (NSW) represents a carefully calibrated intervention in private property rights. It allows the courts to facilitate development and effective land use while protecting the servient owner through the requirements of reasonable necessity, public interest compatibility, and adequate compensation. The body of case law — from Rainbowforce to Jeffrey v Adams — has progressively refined how each precondition is assessed and, crucially, when a neighbour's conduct in resisting an easement crosses the line from legitimate defense to unreasonable obstruction. In an era of increasing urban density and development pressure, familiarity with this provision has never been more important for landowners, developers, and their advisers alike. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Introduction Long and uninterrupted use of another person’s land can, in some cases, give rise to what is known as an “easement by prescription” in NSW. An easement by prescription is a property right acquired through long and uninterrupted use of another person's land — not by formal grant, agreement or statute. It is one of the older doctrines in Australian property law, rooted in common law principles that predate the Torrens title system, yet it remains very much alive in New South Wales. This article examines the legal foundation of easements by prescription in NSW, the requirements that must be satisfied, the critical distinction between 'permission' and mere 'toleration', the recent Supreme Court decision in Maloney v Putu Pty Ltd [2023] NSWSC 1148, and the process by which a prescriptive easement can be formally registered. The Legal Basis for Prescriptive Easements in NSW Prescriptive easements in NSW are founded on the common law doctrine of the lost modern grant . The doctrine proceeds on a legal fiction: where land has been used openly and continuously as of right for at least 20 years, the law presumes that a formal grant of the easement was once made but has since been lost. The foundation in NSW lies in the High Court's early decision in Delohery v Permanent Trustee Co of NSW (1904), which confirmed the doctrine's application in Australian jurisdictions. It has subsequently been affirmed in numerous NSW decisions, including the Court of Appeal's important judgment in Dobbie v Davidson (1991) 23 NSWLR 625. Key Principle: An easement by prescription arises where enjoyment of the right has been ' as of right ' — meaning without force, without secrecy, and without permission — for an uninterrupted period of at least 20 years. The requirement that the easement was enjoyed “as of right” is an important one and is to be distinguished from use of the neighbouring land with consent of the adjoining owner or in secret. It is important to note some limitations unique to NSW. Easements of light (the right to receive natural light) cannot be created by prescription after a prescribed date, and any such easements that may have previously existed have been retrospectively abolished. Prescriptive easements remain available, however, for positive rights — most notably rights of way and access. Prescriptive Easements and the Torrens System New South Wales uses a system of title by registration called the Torrens system. The Torrens system uses a centralized, government-backed register to provide secure, conclusive, and indefeasible evidence of ownership. It simplifies property transfers by replacing traditional, complex paper deeds with a single Certificate of Title. The interaction between prescriptive easements and the Torrens title system has generated significant legal debate in NSW. The indefeasibility principle at the heart of Torrens — that a registered proprietor takes title free of prior interests not recorded on the register — sits in tension with rights that arise from unregistered use and that do not appear on the register. In NSW, the accepted position is that a prescriptive easement is enforceable against the servient landowner who was registered during the period of use, on the basis of an in personam exception to indefeasibility. The prescriptive right binds the person who allowed the use, through principles of unconscionability or personal obligation. Whether such an easement automatically binds a subsequent purchaser of the servient land is more complex and depends on the circumstances of that purchaser's acquisition. This is one reason why formalising a prescriptive easement through a court order and subsequent registration is highly desirable: once recorded on the title, the easement is enforceable against all parties. The Requirements for Establishing a Prescriptive Easement To successfully claim an easement by prescription in NSW, the claimant must satisfy each of the following elements: 1. Enjoyment 'as of right' The use must have been without force, without secrecy, and without permission. This three-part formula is the cornerstone of any prescriptive easement claim: Without force: The use must not have been gained or maintained by violence, physical compulsion, or in the face of active resistance by the landowner. Persistent objection by the servient owner will defeat the claim. Without secrecy: The use must be open and visible, not concealed or clandestine. The servient owner must have had actual knowledge, constructive knowledge, or at least the means of knowledge of the use. Without permission: This is the element most frequently contested. Use made with the permission of the servient owner cannot ripen into a prescriptive right, regardless of how long it continues. The distinction between permission and mere toleration is critical and is examined in detail below. 2. Continuity for at least 20 years The use must be continuous and uninterrupted for a minimum period of 20 years. There is no fixed requirement as to frequency of use, but the use must be sufficiently regular that a reasonable person would understand that a right is being asserted rather than mere occasional access being enjoyed. The 20-year period need not immediately predate the application to court — under the doctrine of lost modern grant, any 20-year period of qualifying use may suffice. Crucially, interruption by the servient owner — such as the erection of a fence or locked gate — may restart the clock, and any period during which the dominant and servient tenements were in common ownership cannot count toward the 20-year period. 3. Use must be capable of being the subject of an easement The right claimed must be one that is capable of being granted as an easement — it must benefit a dominant tenement, accommodate and serve that tenement, and the dominant and servient tenements must be occupied by different persons. A right that could not have been lawfully granted by deed cannot be acquired by prescription. 4. The servient owner must have had knowledge (or the means of knowledge) The acquiescence of the servient owner is a necessary element. That owner must have known, or had reasonable means of knowing, that the use was occurring. The law will not fix a landowner with the burden of an easement they had no opportunity to detect or resist. The Critical Distinction: Permission vs Toleration The most practically significant and frequently litigated element of a prescriptive easement claim is the question of whether the use was 'by permission' or 'as of right'. This distinction can be deceptively subtle. The controlling principle was articulated by the NSW Court of Appeal in Dobbie v Davidson (1991) 23 NSWLR 625. Kirby P identified a non-exhaustive list of factors the Court considers in assessing whether use has been as of right or by permission: The length of time over which the conduct has been peacefully followed; The persistence of the conduct despite changes of ownership of the dominant and servient tenements; The variety and number of persons who have made use of the claimed right of way; The absence of physical impediments or obstructions to the use; and The knowledge of the use by the owners of the servient tenement and their failure to attempt to forbid, limit or control it. The NSW Court of Appeal's subsequent decision in Arcidiacono v The Owners – Strata Plan No 17719 [2020] NSWCA 269 reinforced the key principle: the Court must determine whether the servient owner consented to the use, or merely tolerated it. Toleration as a matter of 'good neighbourliness' is not inconsistent with a prescriptive easement — and indeed this was central to the outcome in Maloney v Putu Pty Ltd . Critical distinction: A servient landowner who knows of the use, does nothing to stop it, and is generally neighbourly about it has likely tolerated the use — which is consistent with prescription. A landowner who expressly authorises or grants permission for the use has consented, which defeats any prescriptive claim. Express permission must be assessed objectively, not merely by reference to the servient owner's private or subjective intentions. Even use of the word 'permission' in conversation or evidence will not automatically be determinative if, viewed objectively, the conduct was more consistent with toleration or acquiescence than with a consensual grant. Case Law: Maloney v Putu Pty Ltd [2023] NSWSC 1148 Background The 2023 decision of Peden J in the NSW Supreme Court provides an excellent recent illustration of these principles in practice. The plaintiff was the registered proprietor of 'Portland Head Farm' in Ebenezer, NSW. The only vehicular access to his property crossed over land comprising three lots — one owned by Hawkesbury City Council (which raised no objection), one whose proprietors could not be located, and Lot 119 which was owned by the first defendant, Putu Pty Ltd, and subsequently transferred to the third defendant. The plaintiff, his father and their various invitees — including guests, farm managers, tradespeople, suppliers, livestock transporters and emergency services — had used the access road for more than 20 years as the sole vehicular access to the farm. Historical mapping evidence suggested the access road had existed since approximately 1803. The Issues The two central issues before the Court were: Whether express permission had been granted in a conversation in 1978 between the parties; and If not, whether the use, while perhaps initially tolerated as a neighbourly indulgence, had over time taken on the character of a right. The Court's Findings On the question of express permission, Peden J assessed the evidence objectively. She found that the plaintiff's use was more consistent with use as of right, noting several telling factors: The plaintiff had spoken to third parties about his 'right to use the road', reflecting his own understanding that he held a legal entitlement — not a licence dependent on goodwill; The access road had been used extensively by a large number of persons over many years; The plaintiff had instructed farm managers to grade and maintain the road at his expense; When the defendant placed a gate across the access road after purchasing Lot 119, the plaintiff removed it — and the defendant did not replace it after a conversation in which the plaintiff asserted his right to use the road. Peden J drew the inference that the defendant did not intend to prevent access once she had heard the plaintiff assert his entitlement; The defendant's own words to her real estate agent — that 'there's a private road which runs through our property [which] is an access road and has always been used by the owners of Portland Head Farm' — conveyed the flavour of an entitlement as of right rather than a permissive arrangement. On the 'neighbourly toleration' question, the Court acknowledged that the defendant had given evidence that she had 'agreed' to the plaintiff's use because she was 'a firm believer of helping out your neighbour'. However, Peden J found that this could not amount to the grant of permission, because at no point had the defendant asserted any basis to prevent the use, and she had never in fact prevented it. The words of permission were, in substance, the words of good neighbourliness — which the law of prescription treats as consistent with the acquisition of a right, not as a bar to it. The Court granted the easement by prescription over Lot 119. It declined to make the same order in respect of Lot 118 because the registered proprietors of that lot had not been joined as parties to the proceedings — an important practical reminder about joinder requirements. Key Takeaways from Maloney Whether use has been 'by permission' is a question of fact, assessed objectively against all of the evidence — not simply by reference to words used. Statements consistent with good neighbourliness, or failures to actively resist use, do not constitute permission. A servient owner's failure to take action to prevent access — even after becoming aware of it — will weigh strongly in favour of a finding of use as of right. All persons with a registered interest in the burdened land must be joined as defendants in any proceedings. Formalising and Registering a Prescriptive Easement in NSW The acquisition of a prescriptive easement by long user gives rise to an equitable right. To make that right enforceable against successors in title and fully effective under the Torrens system, it must be recognised by a court order and then formally registered on the Torrens Register. Step 1: Obtain a Court Order The dominant landowner must commence proceedings in the NSW Supreme Court seeking a declaration that the prescriptive easement exists. All registered proprietors of the servient land must be joined as defendants. The applicant will need to file evidence — typically statutory declarations and supporting material — demonstrating that each element of the claim (20 years of continuous, open use as of right without force, secrecy or permission) is satisfied. Step 2: Prepare the Deposited Plan Once a court order is made, a Deposited Plan must be prepared by a registered surveyor showing the site of the easement. The plan must comply with the NSW Registrar-General's Guidelines and the technical requirements applicable to easements in deposited plans. The easement must be defined with sufficient precision — its location, width and nature must be identifiable on the plan. Step 3: Lodge with NSW Land Registry Services The court order and the deposited plan are lodged with NSW Land Registry Services for registration. On registration, the easement is noted on the folios of both the dominant and servient tenements. From that point, the right is enforceable against all subsequent owners of the servient land. Conclusion Easements by prescription remain a live and practically significant part of NSW property law. The doctrine of lost modern grant provides a pathway for dominant landowners to formalise access rights that have been exercised openly for 20 years or more — but only where that use has been genuinely 'as of right' rather than permissive. The 2023 decision in Maloney v Putu Pty Ltd is a useful recent illustration of the principles at work. It reinforces that the distinction between permission and toleration will be assessed objectively and in context, and that good-neighbourly attitudes — however sincere — will not automatically defeat a prescriptive claim. For any landowner or practitioner navigating a potential prescriptive easement — whether seeking to establish one or to resist a claim — early legal advice and prompt action are essential. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.