Section 89 of the Conveyancing Act 1919 (NSW): Modifying and Extinguishing Easements

Mark Evans • October 30, 2026

The article also sets out practical lessons for owners of land burdened by an easement, owners who benefit from one, and purchasers on either side.

Introduction

Section 89 of the Conveyancing Act 1919 (NSW) allows the NSW Supreme Court to modify or extinguish an easement without the consent of those who hold it, but the authorities show that the power is exercised cautiously and only on proof of one of a closed list of statutory grounds. Of the five decisions examined in this article, only one, Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd, resulted in an easement being extinguished, and it involved a right that had become legally unusable for its sole stated purpose.

The provision sits at a point of tension. An easement is a proprietary right, often bargained for and recorded on the register for purchasers to rely upon, yet it is created “for an indefinite future” and is “destined to enure in a changing environment” (Durian at [4]). A right of way granted for an 1880s “dunny lane” or a 1920s orchard may sit awkwardly on a suburban block a century later.

The five decisions span more than six decades:

Each case summary in this article addresses the facts, issues, determination and key takeaways. The article then draws the threads together, focusing on when an easement secures no “practical benefit” and on the matters the Court weighs in determining whether to exercise its discretion and extinguish an easement or restriction on title.

The statutory framework

Section 89(1) empowers the NSW Supreme Court, “on the application of any person interested in the land”, to “modify or wholly or partially extinguish” an easement or restriction, upon being satisfied of one of several grounds. For easements, the relevant grounds are:

(a) that by reason of change in the user of any land having the benefit of the easement … or in the character of the neighbourhood or other circumstances of the case which the Court may deem material, the easement … ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land subject to the easement … without securing practical benefit to the persons entitled to the easement … or would, unless modified, so impede such user, or

(b) that the persons … entitled to the easement … have agreed to the easement … being modified or wholly or partially extinguished, or by their acts or omissions may reasonably be considered to have abandoned the easement … wholly or in part …

Section 89(1A), inserted by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW), adds that for the purposes of para (b) “an easement may be treated as abandoned if the Court is satisfied that the easement has not been used for at least 20 years before the application under subsection (1) is made.”

The grounds in section 89 (1) are alternatives, and applicants commonly plead all of them, as in Sheppard, Castle and Chatterton. Paragraph (a) contains two distinct limbs: obsolescence, and impediment to reasonable user without practical benefit (Chatterton at [98]). Paragraph (b) covers agreement and abandonment, in whole or in part. Paragraph (c) stands on its own.

Paragraphs (a), (b) and (c) of Section 89 ask different questions. As Myers J explained in Heaton, under para (a) “the inquiry concerns the effect of the restriction or its effect if it is not extinguished or modified”, whereas under para (c) “the inquiry concerns the effect of the desired modification”. The applicant bears the onus on each ground.

Satisfying a ground does not end the inquiry. In Mason P’s words, the power “requires proof of one or more circumstances to the satisfaction of the court coupled with the favourable exercise of a judicial discretion” (Durian at [2]).

Case 1: Heaton v Loblay (1959) 60 SR (NSW) 332

Facts and background

The plaintiff owned a cottage at Balgowlah built close to its boundary with an adjoining allotment, which she also owned until September 1956. On selling the allotment she imposed a covenant, annexed to her land, that no building or structure (other than eaves and guttering up to two feet wide) would be “erected or permitted to remain within six feet from the southern boundary”.

The defendants bought the allotment in 1957 and began building a substantial cottage. Their plans included a terrace about 19 feet long, fitted with a fireplace for cooking and plainly intended for entertaining. It was a suspended concrete slab running to the common boundary and supported there by a brick wall between three and seven feet high. The terrace would sit at about the level of the plaintiff’s front verandah, roughly 12 feet away.

The plaintiff was elderly, her husband was almost bedridden, and her son had afflictions that made privacy desirable; both men used the verandah for rest and recreation. The plaintiff sought an injunction. The defendants denied breach of the covenant, alleged acquiescence by the plaintiff and applied under s 89 to modify the covenant.

Issues

The issues were whether the terrace would breach the covenant; whether the plaintiff had acquiesced to the breach; whether the covenant’s continued existence would impede the reasonable user of the defendants’ land without securing practical benefit to the plaintiff (s 89(1)(a)); and whether the proposed modification would not substantially injure the plaintiff (s 89(1)(c)).

Determination

Myers J held that the terrace would breach the covenant, since both parties’ architects described it as an integral part of the building. The acquiescence defence failed because the defendants could not show they had made it sufficiently clear to the plaintiff that the terrace would extend to the boundary.

On s 89(1)(a), his Honour drew “a clear distinction” between paras (a) and (c) and laid down what has become the governing test for the impediment limb:

It follows that if application is made under par. (a) it is not sufficient to show that what the applicant proposes to do is a reasonable user of the land. It must appear if extinguishment is sought that no reasonable user of the land is possible unless the restriction is extinguished or if modification is sought that no reasonable user is possible unless the restriction is modified.

The paragraph looks not to the present owner’s plans but “to the use which can be made of it in the hand of any owner.” The land could “be used quite well for residential purposes whether the restriction is modified or not”; all the defendants would lose was “the added attraction of the terrace”. That made it unnecessary to decide whether the covenant secured a practical benefit, though his Honour indicated he would have found against the applicants on that point as well.

On s 89(1)(c), the only question was whether the modification would substantially injure the plaintiff, and it would. Expert evidence that her property would not lose value was beside the point: loss of value is not decisive, and where “the covenant was not exacted to preserve the value of the covenantee’s land but for another and different purpose, value is not a factor at all.” Having twice visited the land, Myers J found the terrace would seriously diminish the family’s privacy. There was “a sensible and substantial difference” between a terrace six feet from the boundary and one built right on it.

His Honour also rejected the argument that injury must be measured by an ordinary reasonable person’s reactions: a person “unduly sensitive to particular things” may exact a covenant to protect themselves. The injunction was granted and the s 89 application dismissed with costs.

Key takeaways

Heaton is the source of the “no reasonable user” test, which remains the standard for the impediment limb of s 89(1)(a) and was applied in both Castle (at [54]) and Chatterton (at [105]). The test is objective and owner-neutral: it asks whether the burdened land can reasonably be used by anyone, not whether the applicant’s preferred project is reasonable.

The decision establishes that paras (a) and (c) of section 89 ask different questions, and that substantial injury is not confined to financial loss. Privacy, amenity and the particular purpose for which a right was bargained can each found injury, even where an ordinary person might not feel the loss as keenly.

Although Heaton concerned a restrictive covenant, its reasoning has been applied to easements without qualification.

Case 2: Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 18,099; [2000] NSWCA 28

Facts and background

The parties owned neighbouring industrial land on Ricketty Street, Mascot, both once held by the Minister for Public Works for flood prevention works. In 1964 the Minister granted Ansett Transport a right of way over what became Durian’s land (1–3 Ricketty Street) for the benefit of what became Cavacourt’s land (5–9 Ricketty Street). The grant permitted passage with or without vehicles, but only “for the purposes of gaining or having reasonable access to and from the dominant tenement from and to the public highways adjoining the servient tenement”, namely Ricketty Street.

When the easement was granted, the dominant land was “virtually landlocked”. Over the following decades it gained access to Gardeners Road and was consolidated with other lots, and all its traffic came to use Gardeners Road. From at least 1981 the boundary was marked by a half-metre brick wall or a wire fence with no gate, and the dominant land sat about 70 cm above the servient land. Durian used the easement site as a carpark under a 1988 development consent that required 83 paved, line-marked spaces.

Successive development consents for the dominant land confined vehicular access to Gardeners Road; the 1982 consent stated that “[a]ll vehicular access from the right-of-way off Ricketty Street is to be denied”.

Durian sought extinguishment of the easement under s 89. Young J refused the application, granting Cavacourt a declaration as to the validity of the easement and an injunction restraining Durian from trespassing on it. Durian appealed.

Issues

The issues on appeal were whether, under the first limb of s 89(1)(a), the easement ought to be deemed obsolete, and whether, under the second limb, its continued existence would impede the reasonable user of Durian’s land without securing practical benefit to Cavacourt.

Determination

The Court of Appeal unanimously allowed the appeal and ordered that the easement be extinguished.

Mason P set out the governing approach. Adopting Jacobs J in Re Mason and the Conveyancing Act [1962] NSWR 762 at 764, “obsolete” can be taken to mean “that the object of the covenant is now incapable of fulfilment or perhaps that it serves no present useful purpose”, bearing in mind “the latitude encompassed in a power expressed as one of being satisfied that the easement ‘ought to be deemed obsolete’”. However, the focus must remain the statutory language:

Section 89 necessarily qualifies the common law rights of the owner of the easement. The section is to be applied according to its terms, read fairly and without disregarding the conventional approach to legislation affecting common law property rights. The starting point is the easement itself, its terms and its objects derived from construing those terms in context … and bearing in mind that the easement was created for an indefinite future and destined to enure in a changing environment.

His Honour accepted the caution in Re Henderson’s Conveyance [1940] 1 Ch 835 that the power in section 89 is not designed to allow one owner to expropriate another’s private rights for profit. But “[t]he converse is equally true”: it is no defence to a claim properly brought under s 89, that the dominant owner might extract money from a servient owner anxious to develop.

On the facts, the easement’s “expressed and only purpose” was access to Ricketty Street. It had not been used for that or any purpose for almost 30 years. It was physically blocked, access was available via Gardeners Road, and enforceable planning restrictions made the use impermissible. Mason P noted that “[t]here is no suggestion of usage or need for usage of the easement by pedestrians.” Both limbs of s 89(1)(a) were made out.

Young J had considered the easement not obsolete because access via the easement had been a “selling point” when Cavacourt acquired the land and had value for more flexible use. Mason P held that this “subjective consideration” could not defeat the case: the easement “is no longer capable of useful fulfilment in any practical sense other than as a mere bargaining tool in the hand of the dominant tenant.”

Meagher JA, “with great hesitation”, relied on non-use since at least 1971, the new Gardeners Road access, the reconfiguration of the site, physical obstructions since 1981 and, “perhaps the greatest factor”, planning restrictions making the original use “impossible, and now even illegal”. Stein JA observed that “[i]f ever there was an easement which is obsolete … it is this one.”

Key takeaways

Durian remains the leading appellate statement of the obsolescence test and was applied in Sheppard, Castle and Chatterton. Its outcome, however, turned on an unusual combination: an easement expressly confined to a single purpose, alternative access that made the purpose unnecessary, and planning controls that made it unlawful. Later courts have consistently distinguished Durian on precisely those features.

The case is also the principal authority on what does not count as practical benefit. A dominant owner’s view that the easement is a “selling point”, or its value as a bargaining chip, is not enough. Expert evidence of benefit or value that assumes the easement can be used carries little weight where the real question is whether it can be.

Finally, the Court expressly noted the absence of any pedestrian use or need. That observation has proved decisive in later cases, where pedestrian use kept nominally vehicular easements alive.

Case 3: Sheppard v Smith [2022] NSWCA 167

Facts and background

The parties owned adjoining terraces in inner Sydney: the appellants owned “Number 6” and the respondents “Number 8”. An 1885 conveyance reserved for Number 8 “a right of way over a passage along the western and southern boundaries of the remaining part of Lot three”, an L-shaped laneway 1.045 m wide along the side and rear of Number 6. Its purposes at least included removing “nightsoil”; colloquially referred to in Sydney as a “dunny lane”. The strip only became part of Number 6’s title in 2019, when the appellants obtained possessory title subject to the right of way.

After sewers were connected in about 1908 the lane fell into disuse. Fences were extended across it, and successive owners of Number 6 built a gate at the street, a raised garden bed, a fishpond and a roofed area over the lane. There was no evidence that Number 8’s owner from 1956 to 2008, Ms McJannet, ever used or asserted the right.

The respondents bought Number 8 in 2008 and, when lodging a delimitation plan in 2010, took “active steps” to have the right of way recorded on their title. They later built a gateless paling fence, a metal post and a knee-high concrete wall that impeded access, and for some years kept a shed nearby. The appellants, who bought Number 6 in 2012, enclosed the covered area as a room extending across the lane. In 2019 the council required removal of the structures, with enforcement deferred pending the proceedings.

The appellants sought extinguishment of the right of way under every limb of s 89(1), together with s 89(1A). Parker J dismissed the application ([2021] NSWSC 1207), and the appellants appealed.

Issues

The appellants contended that the primary judge erred in rejecting abandonment by both the respondents and Ms McJannet, including by giving weight to the 2010 notation and to subjective intentions; in finding the easement not obsolete; and in requiring them to show that future use was “so remote”, and the easement’s value “so small”, as to be of no substance.

Determination

Beech-Jones JA, with whom Gleeson JA and Basten AJA agreed, dismissed the appeal.

On abandonment, his Honour confirmed that it is a finding of fact, drawn by “taking into account all the matters of fact which may tend towards or against” that conclusion (Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274). What is required for abandonment is “a firm intention that neither he nor any successor in title of his should thereafter make use of the easement”, and abandonment “is not … to be lightly inferred”. Non-user alone is insufficient, although acquiescence in obstructions inconsistent with the right may support the inference that it has been abandoned.

Recording the right of way on the title of No. 8 was decisive in demonstrating an intention to keep the right of way. “Taking specific steps to record the existence of a right of way onto a certificate of title which is then available to anyone who searches the register is a very public form of affirmation of the existence of the right of way.”

Non-user was not treated as neutral, but had to be weighed in context: the lane was not trafficable, and the respondents had an alternative route to the street through their front door. The paling fence and post were cheap to modify or remove, no different in substance from the fencing in Treweeke. Their form was “very much consistent with a lack of an immediate intention to use the right of way” but was “little, if any, evidence of a permanent intention to abandon”. The knee wall impeded, but did not preclude, access.

As to Ms McJannet, there was simply an absence of evidence. There was nothing to show she asserted the right or objected to the obstructions, but equally nothing to show she knew of the right or expressed any intention to abandon the right of way. Such absences, coupled with no evidence of knowledge of the right of way, do “not translate to a finding of acquiescence”.

Beech-Jones JA also expressed “strong doubts” that later assertions of the right could subvert the power in s 89 arising once abandonment had occurred. The primary judge’s construction of s 89(1A), under which 20 years of non-user suffices only where no other evidence negates an intention to abandon, was not challenged, and the respondents’ manifest intention to retain the right was fatal to reliance on 20 years of non-user.

On obsolescence, Durian did not assist the appellants. “The critical factors pointing to obsolescence in Durian were the limited nature and purpose of the right of way and that subsequent events rendered the use of the right of way unable to achieve that purpose”; non-use and obstructions “simply confirmed” that conclusion. Here the grant was unqualified, nightsoil removal was only one of its purposes, and apart from the sewers there had been no relevant change in the character of the neighbourhood.

His Honour rejected the argument that Durian made the respondents’ intentions irrelevant. What was irrelevant there in Durian was the opinion that the easement was a “selling point”; by contrast, “[a] genuine intention to use the right of way is not irrelevant at least when accompanied by a realistic means to make the right of way trafficable”. Because the purpose was not limited to removal of nightsoil, the easement continued to secure a practical benefit. The primary judge had also rightly held that the need for expenditure to make the lane trafficable “does not mean that it is useless”, and that a “compressed” backyard did not establish an impediment to reasonable user.

On s 89(1)(c), the Court accepted that “substantial” means non-theoretical or having present substance rather than large (Re Mason), and that the onus lies on the applicant to demonstrate extinguishment will not substantially injure the persons entitled to the easement.

Key takeaways

Sheppard is the leading recent appellate statement on abandonment under s 89(1)(b). It confirms the demanding “firm intention” standard and shows that acts asserting the right, especially recording the right on a plan registered on title, will weigh heavily against abandonment. Temporary, inexpensive structures, even if built by the dominant owner, will rarely evidence a permanent intention to forfeit the right.

On obsolescence, the decision reinforces that the terms of the grant are the starting point. A general right of way is not obsolete simply because one historical purpose has disappeared. The Court also clarified Durian: a genuine intention to use, coupled with a realistic means of making the way usable, is relevant; a subjective view about value is not.

For applicants relying on s 89(1A), the case confirms that 20 years of non-user does not automatically produce abandonment where other evidence negates that intention. It also casts doubt on the proposition that a completed abandonment can be cured by later assertions of the right.

Case 4: Castle v Achdjian [2022] NSWSC 1340

Facts and background

A 1967 deposited plan at Hornsby created a ten-foot “right of carriageway” along the eastern edge of 8 Marlee Street (Lot 29, owned by the defendants since 2000) for the benefit of 20 Vista Close (Lot 30), which backs onto Lot 29. Because the s 88B instrument used only the words “right of carriageway”, the easement incorporated the Schedule 8 terms: a right “to go, pass and repass at all times and for all purposes with or without animals or vehicles or both”. Lot 30 slopes steeply from Vista Close down to its rear, and Lot 29 continues to fall towards Marlee Street.

No driveway or path was ever built on the easement site. The easement was blocked for many years by gateless fences at each end and, from about 2011, by a further fence with a gate midway along. A large pine tree grew within it. The Court accepted that the children of the previous owners of Lot 30, the Ryans (1974–2020), climbed the rear fence and used the strip as a shortcut to Marlee Street from about 1983 until 2005.

In 2010 the defendants’ conveyancers asked the Ryans to cancel the easement so that the defendants could extend their house, later offering $5,000 plus costs. Mr Ryan refused, recording that he “was interested in using it for access in due course”. The defendants redesigned their renovation to avoid the easement, but associated works (a front fence, the midway fence and garden retaining structures) encroached on it.

The plaintiffs bought Lot 30 in November 2020, having seen it marketed with “rear access via Marlee St”, and sought removal of the three fences when the defendants resisted their use of the easement. The defendants cross-claimed for extinguishment of the easement or, alternatively, a finding that only a right of footway survived. Their experts said a driveway along the easement could not meet design standards and was most unlikely to be approved.

Issues

The issues were whether the easement ought to be deemed obsolete; whether its continued existence impeded the reasonable user of Lot 29 without securing practical benefit to Lot 30; whether it had been abandoned wholly or in part, including by reason of s 89(1A); whether extinguishment would not substantially injure the plaintiffs; and whether the defendants should be ordered to remove the fences.

Determination

Darke J dismissed the cross-claim and granted the plaintiffs substantial relief, ordering removal of the fences obstructing the right of carriageway.

On obsolescence, His Honour applied Durian, beginning with the easement’s terms construed in context: a residential subdivision on sloping land. Vehicular access was “undoubtedly one purpose”, but the terms also allowed non-vehicular access, and both could be seen as parts of “a more generally expressed purpose of access between the rear of Lot 30 and Marlee Street”. The rear fence could be “quite easily and inexpensively removed”.

The evidence “firmly suggests that vehicular access … is unlikely to be achievable along the right of carriageway”. Nevertheless, once the fences were opened and light vegetation cleared, “the easement could be conveniently used for pedestrian access”, and its surface might be improved for bicycles. His Honour accepted as genuine Mr Castle’s reasons for walking the route: taking his children to the local primary school, and reaching a park and shops.

That distinguished Walker v Bridgewood (2006) 12 BPR 23,537, where there was no good reason for anyone to use the way on foot. Durian was also distinguishable: it was an industrial case with an expressly limited purpose, no pedestrian need, and a use that had become “even illegal”. The easement was “not an easement of no practical utility which ought be removed in order to ‘clear the title’”.

On the impediment limb, Darke J applied Heaton: it must be shown that “no reasonable user of the land is possible unless the easement is extinguished”. The defendants’ complaint depended on a driveway being built, which might well make reasonable residential use of their land impossible. But since council approval was most unlikely, the easement could not be said to impede reasonable use in that way. And because pedestrian use was available, it did secure practical benefit to the dominant owner.

On abandonment, his Honour thought an application is likely “made” for the purposes of s 89(1A) when filed rather than heard; either way, use by the Ryan children until 2005 meant 20 years of non-use could not be shown. The original owners’ acceptance of a gateless rear fence showed no immediate intention to use the way, but the fence was readily removable. The Ryans’ rejection of the 2010 offer and stated intention to use the easement “in due course” were inconsistent with abandonment, and the defendants’ later works were “not major impediments”.

The alternative case of partial abandonment, leaving only a footway, also failed. Drawing on Needham J in Proprietors Strata Plan No 9968 v Proprietors Strata Plan No 11173 [1979] 2 NSWLR 605 and Young J in Finlayson v Campbell (1997) 8 BPR 15,703, his Honour noted the difficulty of applying partial abandonment to a right of carriageway, “especially where, as here, some use has been made of the right. Such use necessarily entails an assertion that the easement exists.”

On s 89(1)(c), applying Re Mason, the loss of pedestrian access between the rear of Lot 30 and Marlee Street “would be a substantial injury”. As no ground was established, the discretion was not reached. His Honour noted, however, that the plaintiffs’ purchase partly in reliance on the easement shown on the title, and the defendants’ failure to seek extinguishment earlier, might have been relevant (Pieper v Edwards).

The front and midway fences, erected by the defendants in about 2011, were actionable nuisances, and mandatory orders for their removal were to be made. The rear fence, built by agreement with the Ryans at shared cost, was not, though the plaintiffs could remove it themselves. The defendants were ordered to pay the plaintiffs’ costs.

Key takeaways

Castle shows that a right of carriageway that may never carry a car can still have real utility. Where its terms allow pedestrian use and there is a genuine, realistic prospect of such use, the easement will not be obsolete, will secure practical benefit, and its loss will be a substantial injury.

The decision is a cautionary tale for servient owners relying on planning constraints in support of arguments that an easement may not have utility. The improbability of council approval for a driveway helped show that vehicular use was unlikely, but it also undermined the impediment argument: an easement cannot impede the servient land by reference to works that will never be built.

The case makes partial abandonment of a right of carriageway difficult to establish where the right has been used in any mode. It also confirms that a servient owner who obstructs an easement without the dominant owner’s agreement risks mandatory removal orders and costs if a s 89 application fails.

Case 5: Chatterton v City of Parramatta Council [2022] NSWSC 1603

Facts and background

In 1922 and 1923 the owners of rural land at Northmead sold two landlocked parcels of agricultural land. Each was granted a right of way 20 feet (6.096 m) wide and 65.84 metres long along the eastern boundary of what is now Lot 56 in Mary Street, to reach a public road. The grants were broad: for the transferee and “all other persons authorised by him or them for all purposes … at all times … to pass and re-pass with or without horses, cattle and other animals, carriages, carts, motors (sic) and other vehicles of all descriptions over and along” the strip.

A century later the neighbourhood had become suburbia. One dominant parcel was now Northmead Reserve, council-owned community land with baseball fields, a playground, an internal road and a carpark. The other had been subdivided in 1968 into about 68 residential lots with their own street access, and by 1994 structures on the Reserve had narrowed their connecting right of way to footpath width.

On Lot 56, timber bollards and a large metal bin were placed on the strip in the early 1980s, and in 1995 the plaintiffs’ father erected a high fence along the southern boundary with double gates across the strip. A neighbour complained to the then council, after which the gate was propped open, and complained again in 2008 when a builder’s fence obstructed the way. A worn path ran along the strip, used daily by residents walking, cycling and pushing prams, and by students of an adjoining school for students with intellectual disabilities.

The plaintiffs inherited Lot 56 in 2019. After a failed auction, they applied under s 89 to extinguish the right of way, and at the hearing confined their claim to reducing the right of way to 1.5 m or another width the Court considered appropriate. Mr Chatterton accepted that they had no plans to develop and sought the modification to obtain a better price. The council opposed. Notice was sent to the subdivided lot owners and advertised; none appeared, but some residents gave evidence for the council.

It was common ground that the use of the land and the character of the neighbourhood had changed dramatically. It was also agreed that, apart from Lot 56’s owners and their invitees, there had been no vehicle use for at least 20 years and no use by horses or cattle.

Issues

Henry J identified four issues: whether the right of way, as to its width, was obsolete or impeded the reasonable user of Lot 56 without securing practical benefit; whether it had been abandoned in part; whether the proposed reduction in width would substantially injure the persons entitled; and, if a ground was made out, how the discretion should be exercised.

Determination

Henry J dismissed the plaintiff’s claim.

His Honour began with construction. Despite the absence of the words “to and from”, the grants did not entitle the council or its invitees to pass through the Reserve to land beyond it; the general rule in Harris v Flower (1904) 74 LJ Ch 127, as explained in Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528, applied. The school’s use of the strip as part of a neighbourhood walking loop was therefore of little weight. But members of the public authorised by the council to go to and from the Reserve were persons whose use and views the Court could consider.

The plaintiffs did not press obsolescence, and Henry J considered that an appropriate concession. Change in use and character is not enough unless the purpose of the right, which included pedestrian access between Mary Street and the Reserve, can no longer be achieved.

On the impediment limb, his Honour described the concept of reasonable impediment as “a narrow one”. An applicant “must demonstrate that the unmodified easement hinders, to a real and sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property and the purposes of the easement”. The plaintiffs invited the Court to infer impediment from the fact that the strip covered almost a third of the lot’s width. Henry J declined. There was no evidence that the easement prevented an extra storey, an extension, a new house or even multi-unit housing on the western side; no evidence of any reduction in value; no development plans; and the lot had always been reasonably used as a residence.

The right of way in its current form plainly secured practical benefit, given its pedestrian use. However, his Honour said that, had it been necessary, he would have concluded that its continued existence “for use with horses, cattle, carts and motor vehicles does not secure any practical benefit” to the council or the lot owners, given the alternative vehicular access and the changes in the neighbourhood.

On partial abandonment, Henry J was prepared to infer that the subdivided lot owners had abandoned the right other than for pedestrians, cyclists and mobility aids. The council’s position was different: its non-use by vehicles was explained by alternative access, the obstructions were easily removable, and the 1995 and 2008 complaints, followed by the gate being propped open, showed rights being asserted. Applying Castle, his Honour was “not convinced” that non-use of particular modes of enjoyment showed a firm intention not to use the full width. Section 89(1A) could not apply where pedestrians and cyclists had used the way throughout the 20 years before filing.

The decisive issue was s 89(1)(c). Henry J emphasised that practical benefit concerns the effect of the easement if left unmodified, whereas substantial injury concerns the effect of the proposed modification. A loss of practical benefit may, but need not, amount to substantial injury. The injury may be intangible, and the Court may consider its effect on members of the public authorised by the council to use the way.

Removing the right to drive along the strip would not cause substantial injury. With sealed roads giving direct access to the Reserve and a walk along the strip taking “a minute or so”, the loss of vehicular rights would be “mere theoretical injury”. Reducing the width to 1.5 m or 1.8 m was another matter. It would cut the usable area by 70–75%, move users away from the worn path, and make it hard for prams, bikes, wheelchairs and groups to pass, particularly where the strip was shared with vehicles using Lot 56’s driveway.

The council’s expert, a council-employed landscape architect, was treated “with caution”, but the standards she cited gave “some objective guidance”. A 3.5 m width fared no better: it would overlap much of the driveway, leaving pedestrians to step off the way, and trespass, to avoid a car. “The loss of amenity and the prospect of a less safe passage by pedestrians” was an injury of substance, even without evidence of financial impact.

As no ground for extinguishment under s 89 was established, the discretion did not arise, although Henry J outlined the matters that would have been relevant (discussed below).

Key takeaways

Chatterton shows that practical benefit and substantial injury can be assessed component by component. The Court was prepared to find that the vehicular and animal rights secured no practical benefit and could be removed without substantial injury. The plaintiffs, however, did not seek that modification, and the width they targeted continued to deliver real amenity and safety.

Applicants must frame their proposed order carefully and support it with evidence. The impediment case failed for want of evidence (no development proposal and no valuation), and the substantial injury case failed because the proposed widths did not reflect how the right of way was actually used.

Finally, the plaintiffs’ candid aim of a better sale price sat uneasily with the principle that s 89 is not designed to let one owner expropriate another’s rights for profit.

Conclusion

Section 89 gives the Court a genuine power to adapt the register to a changing world, but the five cases show that it is reserved for easements that have truly outlived their usefulness. A right granted for an indefinite future is not lost merely because it is unused, inconvenient to the servient owner, or no longer exercised in the way its original parties envisaged.

Durian marks the outer limit. There, a narrowly framed easement had become unnecessary, physically blocked and unlawful to use for its only purpose, and had no pedestrian dimension. The 2022 decisions show how rarely those conditions coincide. In Sheppard, a nineteenth-century dunny lane survived because its grant was general and its owners had publicly affirmed it. In Castle, a right of carriageway that may never carry a car survived because it could be walked. In Chatterton, a 6 metre right of way survived intact because its width served the safety and amenity of the people who used it, even though its vehicular and animal rights had lost their utility.

For servient owners, the lessons are to construe the grant first, gather evidence of how the easement is actually used, frame the order narrowly, and avoid self-help. For dominant owners, recording, asserting and genuinely planning to use the right are the best protection. For purchasers on either side, the register remains the anchor: what is on the title will generally stay there unless the strict requirements of s 89 are met.

Disclaimer

The contents of this article are a general guide and intended for educational purposes only. Determination of the types of issues discussed in this article is complex and often varies from case to case and involves an understanding of matters of fact and degree. Opinions on those matters can vary and be matters on which reasonable minds may differ.

DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

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Existing Use Rights in New South Wales: What Four Decisions Tell Landowners

By Mark Evans • October 15, 2026

Existing use rights allow a use that was lawful before a planning prohibition took effect to continue despite it. This article reviews four NSW decisions, from the Court of Appeal and the Land and Environment Court, that show how these rights are established, how they are described, and how they can be lost

Who is the "Applicant" in a Class 1 LEC Appeal?

By Mark Evans • August 7, 2026

Who is the correct applicant in an NSW Class 1 LEC appeal? This article explores key cases and the rules on agents, principals, substitutions and subsequent purchasers.

Encroachments in New South Wales

By Mark Evans • May 22, 2026

Introduction An encroachment arises where a building or structure built on one parcel of land extends into an adjoining owner's land — whether above ground, at ground level, or even below the surface. The intrusion may be minor — a fence post, a roof eave, or a retaining wall footing — or it may involve a substantial part of a permanent structure. The principal legislation governing encroachments in New South Wales is the Encroachment of Buildings Act 1922 (NSW) (the Act ). The Act gives the NSW Land and Environment Court (the Court ) a broad discretionary jurisdiction to deal with encroachments in a way that is just and equitable in all the circumstances. This reflects a pragmatic recognition that removal or demolition of an encroachment is not always a proportionate response, particularly where the encroachment has stood unchallenged for many years. Two recent decisions of the Court — Gabriel v Billett [2023] NSWLEC 85 and Johnston v Cutbus h [2025] NSWLEC 1482 — illustrate the way in which these principles are applied in practice and offer valuable guidance for property owners confronted with encroachment issues. The Legal Framework: Encroachment of Buildings Act 1922 (NSW) Who Can Apply? Under section 3(1) of the Act, either the Encroaching Owner or the Adjacent Owner may apply to the Court for relief. The Act defines these terms as: Encroaching Owner — the owner of the land from which the encroaching building or structure originates. Adjacent Owner — the owner of the land into which the encroachment extends. This dual standing is important. An adjacent owner who feels their land is encroached upon may wish to apply to the Court for a remedy to deal with the encroachment. An encroaching owner may wish to apply for an easement or other formal entitlement to recognize an existing encroachment. Remedies Available to the Court Section 3 of the Act provides a number of remedies to deal with an encroachment. The range of orders the Court may make include: compensation to the Adjacent Owner for the encroachment and any loss suffered; the conveyance, transfer, or lease of the encroached-upon land to the Encroaching Owner; the grant of an easement, right, or privilege in favour of the Encroaching Owner; or removal of the encroachment. Crucially, the Court is not limited to a binary choice between removing the encroachment and doing nothing. It may, and frequently does, grant an easement over the affected portion of the neighbouring land — a remedy that allows the encroaching structure to remain, while providing the Adjacent Owner with legally recognized compensation and formal protection. Factors the Court Considers In determining which of the remedies is appropriate, section 3(3) of the Act directs the Court to have regard to several factors, including: whether the applicant is the Encroaching Owner or the Adjacent Owner. the situation and value of the land in question, and the nature and extent of the encroachment. the character and purpose of the encroaching building or structure. the loss and damage that has been or will be caused — both to the Adjacent Owner by the encroachment, and to the Encroaching Owner if removal were ordered. the circumstances in which the encroachment was made, including whether it was intentional, negligent, or the result of an innocent mistake. This multi-factorial assessment means that outcomes are highly specific to each case. The Court must weigh these competing interests and arrive at a solution that is, on balance, just and equitable. Compensation Section 4 of the Act deals with compensation. Where the Encroaching Owner can prove the encroachment was neither intentional nor the result of negligence, the minimum compensation payable is the value of the subject land. In any other case, compensation of up to three times the value of the land can be awarded. In assessing compensation above the minimum, the Court has regard to the improved or unimproved value of the land to the Adjacent Owner, the loss suffered, and the circumstances in which the encroachment was made. Case law Recent cases are illustrative of how the Court deals with encroachments under the Act. Gabriel v Billett [2023] NSWLEC 85 Decision Decided 15 August 2023 before Robson J (Class 3 application). The Court ordered removal of the encroaching portion of a shed within four months at the Adjacent Owner's cost. Facts Gabriel owned a property on which a small timber and metal shed (18m² in total) had been built. 11m² of the shed crossed onto the neighbouring property owned by Billett. The encroachment predated both owners. Gabriel had been aware of the encroachment since purchasing his property in 1996. Gabriel commenced proceedings seeking a transfer of 34.5m² of Billett's land at unimproved land value. Billett opposed this and sought removal of the 11m² encroachment. The cost of removal was quoted at $925. Decision Robson J refused Gabriel's application and ordered removal of the encroaching 11m² of the shed within four months, with Billett bearing the removal costs by way of indemnity. Reasoning Three factors were decisive. First, the Court had no jurisdiction to transfer the 34.5m² sought — the Act limits any transfer to the 'subject land' directly beneath the encroachment (11m²), and no broader buffer zone can be transferred. Second, Gabriel had known about the encroachment since 1996 and continued using his neighbour's land for storage throughout, which weighed heavily against him under section 3(3)(f) (the circumstances in which the encroachment was made). Third, removal of the encroachment would cost only $925 — a trivial sum. The shed was dilapidated with no meaningful heritage value, and the encroachment constrained Billett's plans to develop the rear of her small allotment. With hardship to the Encroaching Owner (Gabriel) minimal and hardship to the Adjacent Owner (Billet) real, removal was the just outcome. Johnston v Cutbush [2025] NSWLEC 1482 Decided 7 July 2025 before Commissioner Gray (Class 3 application). The Court ordered removal of a studio, composting toilet building and grey water tank within 60 days at the Encroaching Owners' expense. Facts Johnston (Adjacent Owner) purchased a 40.68-hectare rural property in 2016. A survey confirmed that three structures built by her neighbours — Cutbush (Encroaching Owner) — encroached onto Johnston’s land: a detached studio (encroaching by up to 5.57 metres), a waterless composting toilet building (wholly on Johnston's land but part of the studio's sewage system), and a grey water tank and pipework. The Encroaching Owner had owned their adjoining 6-hectare property since 1992 and over three separate periods between 1992 and 2008 had progressively enlarged an existing shed into a studio and installed a sewage management system — each time without development consent or building approval, and each time without commissioning any survey to verify the boundary. When the Encroaching Owner later sought to regularise the structures through council applications in 2008, those applications were accompanied by plans that misrepresented the studio as being wholly within their title. The 2008 approvals and building certificate did not authorise works already carried out, and did not authorise any structures on Johnston's land. Decision Commissioner Gray ordered removal of the studio, composting toilet building and grey water tank within 60 days at the Encroaching Owner’s expense. The alternative of a land transfer — which the Encroaching Owner supported — was refused. Reasoning The Commissioner's reasoning centered on the circumstances of the encroachment. The respondents had carried out three rounds of unauthorised works over two decades without taking any steps to verify the boundary — no survey, no pegging, no professional advice. They then misrepresented the location of the structures in council applications. Whether deliberate or careless, this demonstrated sustained disregard for the adjoining owner's property rights. Beyond the $65,900 removal cost, no evidence of concrete hardship to the respondents was led. By contrast, Johnston gave detailed evidence of plans to use an area of her property for ecotourism and glamping — plans directly frustrated by the encroachments. The land transfer was also refused because the area required to be transferred (177m²) was more than three times the subject land as defined by the Act (approximately 50m²); it was inappropriate to compel the Adjacent Owner to surrender significantly more land than that directly beneath the encroachment in circumstances where the Encroaching Owners had acted without authorisation or care. Key Takeaways Removal is a live remedy. Courts do not default to allowing encroachments to remain. Where the Encroaching Owner bears responsibility for creating the encroachment and it is shown that the encroachment arose out of negligence, removal is a likely outcome. The circumstances of the encroachment are decisive. Knowing, long-standing use of a neighbour's land and unauthorised construction without boundary verification both may attract removal orders. Council approvals do not defeat private encroachment claims. A building certificate prevents council enforcement only — it does not legalise works already carried out or bar an Adjacent Owner's claim under the Act. Transfers are limited to the subject land. The Act cannot be used to transfer a buffer zone beyond the encroachment footprint. Landowners should commission a survey before building near a boundary. Both cases arose from failure to verify the boundary location before construction began. Negotiate early and in good faith. Entrenched positions and unreasonable demands were noted adversely by the Court in both cases. 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.

Easements by Necessity in New South Wales

By Mark Evans • April 30, 2026

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.

Easements by Prescription in NSW

By Mark Evans • April 2, 2026

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.

Rejection of Development Applications in NSW: Understanding Your Rights

By Mark Evans • March 19, 2026

Local councils are increasingly employing two mechanisms to reduce the number of applications under assessment. The first is outright rejection — returning applications on the stated basis that required documents or information are missing. The second is more passive but equally damaging: not issuing an invoice for assessment fees, leaving the application suspended in a state where it cannot be formally lodged and cannot advance. Both mechanisms carry real consequences for applicants. A development application ( DA ) that is rejected or that has not been formally lodged attracts no assessment obligations from the consent authority, no appeal rights in the Land and Environment Court of NSW ( LEC ), and no protection against planning controls that may change in the interim. This article sets out the legal rules that govern pre-lodgement rejection, explains why invoice delay can be just as harmful as outright rejection, and identifies the avenues available to applicants who find themselves in this position. The legal rules governing pre-lodgement rejection Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EP&A Reg ) outlines the circumstances in which a consent authority can reject a DA at the pre-lodgement stage. The provision is deliberately narrow. A council may only exercise this power: on one of the specific grounds set out in section 39(1)(a) to (f) of the EP&A Reg; and within 14 days of receiving the DA via the NSW Planning Portal. The mirror provisions for modification applications are found at section 114(1)(a) to (d) of the EP&A Reg. Any rejection that falls outside this framework — whether because it is issued after the 14-day period has elapsed, or because it relies on grounds not found in the EP&A Reg — is legally invalid. It is an exercise of power the council simply does not have, and is open to challenge in Class 4 of the LEC's jurisdiction. The grounds on which rejection is permitted Section 39(1) of the EP&A Reg provides: (1) A consent authority may reject a development application within 14 days after receiving the application if — (a) the application is illegible or unclear about the development consent sought, or (b) the application does not contain the information and documents that are required by — (i) the approved form, or (ii) the Act or this Regulation, or (c) for an application for State significant development — the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or (d) for an application for integrated development — the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or (e) for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 — the application is not accompanied by a report, or (f) for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW — the application is not accompanied by a statement. The reference in section 39(1)(b)(i) to the 'approved form' relates to the form approved by the Planning Secretary and published on the NSW Planning Portal, as defined in Schedule 7 of the EP&A Reg. The relevant document at the date of this article is the Department of Planning and Environment's Application Requirements (March 2022). Essentially, the permissible grounds for rejecting a standard DA are that it is illegible or unclear, that it omits material required by the approved form, or that it omits material expressly required by the EP&A Act or EP&A Reg. One point warrants emphasis above all others: a council cannot reject a DA at the pre-lodgement stage on matters of merit. Councils occasionally attempt to return applications because their preliminary view is that the application will not be approved, or because the plans appear to involve non-compliances. This is not a lawful basis for rejection. The pre-lodgement gateway exists only to verify that the prescribed documents and information have been provided. Consideration of the merits — under the framework in section 4.15(1) of the EP&A Act — is reserved for the assessment stage, which begins only after lodgement. A merit-based rejection will almost invariably be susceptible to challenge. The 14-day window and the problem of invoice delay A council's power to reject a DA or modification at the pre-lodgement stage expires 14 days after the application is received via the NSW Planning Portal. A rejection notified after that point is legally invalid. We have observed councils purporting to reject applications well outside the 14-day window, sometimes by weeks or months, and in our experience applicants rarely challenge this. A separate but equally serious problem arises where a council does not reject the DA — but also does not issue an invoice for assessment fees. The NSW Court of Appeal and the LEC have now clearly held that a DA is only formally 'lodged' once the invoice has been issued and the fee paid: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 ; Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 . Because a DA is only formally 'lodged' once the invoice has been issued and the fee paid, a council that withholds the invoice can hold an application in permanent limbo without ever technically rejecting it. The same rule applies to modification applications by virtue of section 99(4) of the EP&A Reg. An application that has not been lodged in this sense cannot proceed to assessment, generates no appeal rights, and remains exposed to any change in applicable planning controls that occurs after submission. The stakes could not be higher, as the facts of Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2023] NSWCA 264 ( Hinkler ) demonstrate. In Hinkler, the applicant uploaded a DA for a mixed-use development incorporating affordable housing to the NSW Planning Portal on 22 October 2021. No invoice was issued by the council until 2 December 2021 — five weeks after submission. During that window, on 26 November 2021, the SEPP ( Affordable Rental Housing ) 2009 ( SEPP ARH ) was replaced by the SEPP ( Housing ) 2021 ( SEPP Housing ). A savings provision in the SEPP Housing preserved rights for DAs already 'made' before its commencement. Had the invoice been issued and paid before 26 November 2021, the applicant would have been entitled to rely on the former SEPP ARH. Because it was not, the Court of Appeal held the DA was not 'made' in time, and the applicant was required to satisfy the more demanding requirements of the new SEPP Housing. At paragraph [159], Preston CJ (of LEC) noted that a council's failure to issue an invoice within a reasonable time may constitute a breach of statutory duty, and that an applicant in that position may seek an order of mandamus compelling the council to fulfil its obligation. Options available to applicants Applicants faced with an unlawful rejection or an unreasonable invoice delay have genuine legal options. Internal review under section 8.2 of the EP&A Act allows a council to reconsider its own decision. Supported by clear written submissions identifying why the rejection was not authorised by the EP&A Reg, this process can produce a faster and less costly resolution than litigation — particularly where the council's position appears to rest on a misreading of the application rather than a deliberate strategy. Judicial review is available in Class 4 of the LEC where a jurisdictional error can be established. Depending on the circumstances, an applicant may seek: certiorari to quash the rejection decision; mandamus to compel the council to accept the application and issue an invoice; and declaratory relief confirming that the rejection was unlawful. If your DA or modification application has been rejected on questionable grounds, rejected outside the 14-day window, or if an invoice has not been issued within a reasonable period, we recommend seeking legal advice without delay. The consequences of inaction — including exposure to changed planning controls — can be irreversible. 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.

The Law of Private Nuisance in NSW and the Impact of Hunt Leather v Transport for NSW [2025] HCA 53

By Mark Evans • February 27, 2026

Part 1: The Law of Private Nuisance in NSW What is Private Nuisance? Private nuisance is a common law tort that protects landowners from substantial and unreasonable interference with their use and enjoyment of land. Unlike public nuisance — which affects the broader community — private nuisance is concerned with protecting the rights of individual landowners against interference caused by neighbouring activities. The tort does not require any physical entry onto the plaintiff's land. Interference caused by noise, vibration, dust, fumes, noxious odours, or prolonged obstruction of access can all found a nuisance claim, provided the interference is sufficiently serious. At its core, private nuisance seeks to balance two competing interests: the right of a landowner to enjoy their property without undue disturbance, and the freedom of a neighbouring landowner to use their land for legitimate purposes. Key Elements of a Private Nuisance Claim To succeed in a claim for private nuisance, a plaintiff must establish two key elements. First, there must be a substantial interference with the plaintiff's ordinary use and enjoyment of their land. Trivial or fleeting disruptions will not meet this threshold. The interference must be something that a person of ordinary habits and sensibilities, taking into account the surrounding environment and circumstances would find genuinely disruptive to their normal use of property. Second, that interference must be attributable to the defendant's use of land or activities that affect the plaintiff's land. The concept of 'substantial interference' is assessed objectively, having regard to the locality in which the land is situated and the reasonable expectations of persons using land in that area. Courts will consider the nature, duration, frequency, and intensity of the interference when determining whether it crosses the necessary threshold. A person who operates a business in Sydney's CBD, for example, must tolerate a greater degree of noise and disruption from nearby commercial activities than a homeowner in a quiet suburban street. How Private Nuisance Differs from Negligence Private nuisance is frequently conflated with the tort of negligence, but the two are conceptually and practically distinct. In negligence, the central question is whether the defendant failed to exercise reasonable care — the focus is on the defendant's conduct. In private nuisance, the focus is on the nature of the interference with the plaintiff's land, not the manner in which the defendant behaved. A defendant who has exercised all reasonable care and skill, and who cannot be criticised for the way in which it conducted its activities, may nonetheless be liable in private nuisance if the interference with the plaintiff's land is found to be unreasonable. This distinction has significant practical consequences for plaintiffs. It means that landowners and business operators who suffer interference with their properties are not required to identify and prove a specific act of carelessness on the part of the defendant. The question is whether the interference itself was unreasonable — and whether the defendant can demonstrate a lawful justification for it. The Locality Principle NSW courts apply a locality principle in assessing private nuisance claims. The reasonable expectations of ordinary landowners differ depending on whether property is located in a quiet residential area, a busy commercial precinct, or an established industrial zone. The standard applied is that of a person of ordinary habits and sensibilities living in the relevant locality, not an unusually sensitive plaintiff whose discomfort results from a pre-existing vulnerability. Defences Available to Defendants Several defences may be available to a defendant in a private nuisance claim. The most commonly invoked — particularly in the context of public infrastructure — is the defence of statutory authority. Where legislation authorises a public authority to carry out works that would otherwise constitute a nuisance, the authority may escape liability on the basis that the interference was an inevitable consequence of exercising its statutory powers. A common example is roadworks where a statutory authority, typically a Council is authorized by legislation to carry out roadworks that may impact on private land. However, the defence is not unlimited. To succeed, the defendant must establish both that the statutory power authorised the relevant interference and that the power was exercised in a manner that reasonably minimised the impact on affected landowners. A statutory power to build, without more, does not authorise every form of disruption that results from the way in which construction is carried out. Other recognised defences include prescription — where the nuisance has continued openly for 20 years without objection — and consent. These defences are narrowly applied and will rarely excuse substantial ongoing interference. Remedies for Successful Plaintiffs A successful plaintiff in a private nuisance action may seek two principal forms of relief. Damages may be awarded to compensate for losses suffered as a result of the interference, including loss of use and enjoyment of land, diminution in property value, and losses to a business operated from the affected premises. In some cases, consequential economic losses arising from the interference may also be recoverable. An injunction may be available to restrain the defendant from continuing the nuisance, though courts exercise discretion in granting injunctive relief and will consider whether damages would be an adequate remedy and where the balance of convenience lies. Why Private Nuisance Matters for NSW Landowners Private nuisance remains one of the most valuable legal tools available to NSW landowners and business operators who suffer interference with their properties. It does not require proof that the defendant was careless. It does not require physical entry onto the plaintiff's land. And it is not dependent on any specific statutory compensation scheme. This combination of features makes private nuisance particularly relevant for those affected by large-scale construction projects, infrastructure works, and industrial or commercial activities in proximity to their premises. The High Court's decision in Hunt Leather v Transport for NSW [2025] HCA 53 has confirmed and clarified the legal principles that govern such claims — and in doing so, has strengthened the position of aggrieved landowners considerably. Part 2: Hunt Leather v Transport for NSW [2025] HCA 53 — Case Summary Background and Facts The case arose from the construction of the Sydney Light Rail project — a major infrastructure undertaking in the Sydney CBD, connecting Circular Quay with Randwick and Kensington. Transport for NSW ( TfNSW ) was the statutory authority responsible for the design and delivery of the project. The plaintiffs, including Hunt Leather Pty Ltd, were proprietors of businesses located along the construction route. They brought representative proceedings seeking damages against TfNSW in private nuisance, alleging that TfNSW's construction activities caused substantial interference with their businesses through noise, dust, vibrations, and impediments to access. The central complaint was not merely that construction was disruptive, but that it extended far beyond the timeframes set out in TfNSW's Initial Delivery Program ( IDP ) — the document that notified affected businesses of the anticipated duration of construction in each stage or 'fee zone.' The delays were substantially caused by the unexpected discovery of underground utilities along the construction route, which had not been identified or accounted for when the IDP was prepared. The Trial Decision At first instance in the NSW Supreme Court, the trial judge found TfNSW liable in private nuisance. The judge held that the delays which caused construction to extend beyond the IDP periods amounted to unreasonable interference with the plaintiffs' enjoyment of their properties. Critically, the trial judge rejected TfNSW's submission that it had exercised reasonable care in planning the works and that this was sufficient to defeat the claim. The judge accepted that reasonableness in nuisance is assessed by reference to the nature of the interference — not the conduct of the defendant. The NSW Court of Appeal TfNSW appealed, and the NSW Court of Appeal overturned the trial judge's findings. The Court of Appeal concluded that the plaintiffs had failed to establish that the interference was unreasonable. In the Court's view, the IDP could not be treated as a reliable benchmark for assessing the reasonableness of the interference, because it made no allowance for contingencies such as inclement weather or the discovery of underground utilities. The Court also held that the plaintiffs had failed to establish what pre-construction investigations TfNSW could reasonably have undertaken, whether those investigations would have been feasible, how long they would have taken, and whether they too might have constituted a substantial interference with the plaintiffs' land. In the absence of that evidence, the plaintiffs could not demonstrate that the construction exceeded a reasonable timeframe. The Court of Appeal went further, stating that it could not be the law that construction authorised by statute becomes actionable nuisance simply because it takes longer than scheduled. This observation reflected significant judicial caution about the prospect of imposing nuisance liability on public infrastructure projects that experience ordinary construction delays. The High Court Decision The High Court allowed the plaintiffs' appeal and upheld the trial judge's finding. In doing so, the Court provided the most authoritative and comprehensive statement of the principles governing private nuisance to emerge from an Australian appellate court in many years. The lead judgment was delivered by Justices Gordon and Edelman, with the Chief Justice and other members of the Court providing separate concurring judgments. Substantial Interference — The starting point for any nuisance claim is whether there has been a substantial interference with the plaintiff's ordinary enjoyment of land. This threshold must be established by the plaintiff and is assessed objectively by reference to the locality and the reasonable expectations of persons using land in that area. The High Court confirmed that this element was clearly established on the facts: the prolonged occupation of fee zones, far beyond what was contemplated in the IDP, plainly constituted a substantial interference with the plaintiffs' use and enjoyment of their properties. Common and Ordinary Use — Once substantial interference is established, the onus shifts to the defendant to justify it. The first question is whether the defendant's use of land was 'common and ordinary' for that locality. This is assessed with regard to the objectively reasonable expectations for land use in the relevant area. The Court emphasised that 'common and ordinary' does not mean 'performed with reasonable care.' The inquiry is about the nature of the use itself — whether it is the kind of use that landowners in that locality could reasonably expect from their neighbours — not about the standard of care with which it is carried out. Conveniently Done — Even if a defendant's use of land is found to be common and ordinary, it may still constitute nuisance unless the defendant can establish that the interference was 'conveniently done.' This test requires the defendant to demonstrate that it took reasonable steps to minimise the extent of the interference with the plaintiff's enjoyment of land. As Justices Gordon and Edelman explained, this requires consideration not merely of the convenience of the defendant, but also the convenience of the plaintiff. A defendant cannot point to its own operational preferences, financial constraints, or project management decisions to justify an extended and substantial interference with a neighbouring landowner's use of their property. Burden of Proof — The High Court confirmed the allocation of the burden of proof with clarity. The plaintiff bears the legal onus of establishing substantial interference with the common and ordinary use of their land. Once that is established, the onus shifts to the defendant to prove — by way of defence — that its use of land was common and ordinary and was conveniently done. The plaintiff also has an evidentiary onus to identify the respects in which the defendant's conduct was not conveniently done, but is not required to prove a detailed counterfactual about what the defendant could have done differently and with what result. No Counterfactual Required — One of the most important aspects of the High Court's decision is its rejection of the Court of Appeal's finding that the plaintiffs were required to establish what steps TfNSW could and should have taken prior to and during construction to reduce the interference, and to prove that those steps would have made a material difference. The High Court held that this requirement imposed an unrealistic and disproportionate evidential burden on plaintiffs who are unlikely to have access to the defendant's internal planning records, operational data, and project management decisions. Statutory Authority Defence TfNSW argued that it was immune from liability on the basis that the Sydney Light Rail was authorised by legislation. The High Court upheld the Supreme Courts' rejection of this defence. The Court confirmed that statutory authority requires the defendant to establish that the interference was an inevitable consequence of the exercise of the statutory power — not merely that the project as a whole was authorised by statute. Because the prolonged delays that caused the interference resulted from TfNSW's own planning decisions and choices, rather than from the inherent nature of the authorised works, the interference was not inevitable. The statutory authority defence therefore failed. Section 43A of the Civil Liability Act 2002 (NSW) TfNSW also relied on s 43A of the Civil Liability Act 2002 (NSW), which attenuates the standard of care applicable to public authorities exercising special statutory powers. The High Court unanimously confirmed that s 43A does not operate as a standalone defence, but rather adjusts the applicable standard of care. More importantly, the Court held that s 43A did not apply on the facts because the planning and procurement of the project did not involve the exercise of a 'special statutory power' within the meaning of the provision. Outcome Although the Justices reached different conclusions on the question of whether TfNSW's use of land was 'common and ordinary,' they were unanimous in finding that TfNSW's construction was not 'conveniently done.' TfNSW was accordingly held liable to the plaintiffs in private nuisance, and the trial judge's award of damages was reinstated. Part 3: Implications for Private Nuisance Law in NSW Nuisance and Negligence Are Distinct The High Court's most enduring contribution in Hunt Leather is the unequivocal confirmation that private nuisance and negligence are distinct torts governed by different principles. For plaintiffs, this is of profound practical significance. A landowner or business operator who suffers substantial interference with the use and enjoyment of their property is not required to prove that the interfering party was careless, that a duty of care was owed, or that the defendant breached any applicable standard of reasonable conduct. The question in nuisance is whether the interference itself was unreasonable — not whether the defendant's behaviour was unreasonable. This distinction opens the door to liability even where the defendant has done everything that could reasonably be expected of a careful and diligent operator. A Stronger Position for Affected Landowners For NSW landowners and business operators, Hunt Leather provides a clearer and more accessible legal framework for pursuing private nuisance claims arising from construction and infrastructure works. The rejection of the counterfactual requirement — which would have compelled plaintiffs to mount a detailed expert case about how the defendant's project planning should have been conducted — removes a significant practical obstacle. Affected parties need only identify the respects in which the defendant's use of land was not conveniently done. Once that evidentiary case is made, the burden falls squarely on the defendant to justify the interference. This is a more workable framework for landowners and business operators who will often lack access to the defendant's internal planning documents, programming schedules, and operational decision-making. It recognises that the plaintiff is not in a position to know the full detail of how the defendant managed its project. Obligations for Statutory Authorities and Project Proponents The decision carries important and practical implications for statutory authorities responsible for infrastructure and construction projects, as well as for their contractors and project managers. The mere fact that works are authorised by statute will not protect an authority from liability in private nuisance. To successfully invoke the statutory authority defence, the authority must demonstrate that the interference with neighbouring landowners was an inevitable consequence of exercising its statutory powers — and that those powers were exercised diligently and expediently and with proper consideration for the interests of affected parties. Where delays and disruptions result from the authority's own planning choices — inadequate pre-construction investigations, unrealistic programming or poor risk management — the statutory authority defence will not provide protection. Authorities and contractors must invest seriously in thorough pre-construction investigations, realistic and contingency-aware programming, and active management of construction impacts on neighbouring properties and businesses. Where extended works or delays are unavoidable, authorities should be in a position to demonstrate the specific steps taken to minimise the impact on affected parties. The 'Conveniently Done' Standard The High Court's articulation of the 'conveniently done' standard will be a focal point of future private nuisance litigation. The test is a demanding one. It requires defendants to demonstrate not merely that their chosen approach to construction was operationally convenient or cost-effective for them, but that it gave proper and genuine consideration to the impact on neighbouring landowners. The interests of the plaintiff must be weighed alongside the interests of the defendant in assessing whether the interference was conveniently done. In practice, this means that authorities and project proponents should document their impact mitigation efforts from the earliest stages of a project. Evidence of proactive engagement with affected businesses, meaningful adjustment of construction sequences to reduce impacts, and genuine consideration of alternative approaches will all be relevant to establishing that the interference was conveniently done. Defendants who cannot point to such measures will face significant exposure. Conclusion Hunt Leather v Transport for NSW [2025] HCA 53 is the most significant development in the law of private nuisance in Australia in recent decades. By authoritatively clarifying the framework for establishing and defending nuisance claims, and by firmly distinguishing the tort from negligence, the High Court has provided both plaintiffs and defendants with a clearer understanding of their legal rights and obligations. For landowners and business operators in NSW, the decision confirms that private nuisance is a robust and accessible legal remedy — one that provides genuine protection where the use and enjoyment of land is substantially and unjustifiably disrupted by the activities of others. For statutory authorities, infrastructure proponents, and their contractors, it is a clear signal that thorough planning, realistic programming, and genuine impact mitigation are not merely good practice — they are legal imperatives. 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.

No Right of Appeal Against Council Rejection of Development Applications in NSW

By Mark Evans • February 20, 2026

Introduction Until recently, uncertainty existed around whether a council's rejection of a development application, could be appealed to the NSW Land and Environment Court ( LEC ). That uncertainty was resolved by the decision in Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42 (Johnson Property Group) in which the LEC held that there is no right of appeal against a council's decision to reject a development application. There is a very big difference between a refusal to accept a development application and determination of that development application by way of refusal. The decision in Johnson Property Group explore this the critical distinction between procedural "rejection" and substantive "determination." The Legislative Framework The EPA Act appeal structure Section 8.1 of the Environmental Planning and Assessment Act ( EPA Act ) defines "appeal" as referring to appeals to the LEC under Divisions 8.3, 8.4, 8.5, and 8.6. This definition is important because it confines the scope of appellate rights to those expressly provided within these divisions in the EPA Act. Section 8.6: The gateway provision Section 8.6(1) operates as the gateway provision for all appeal rights within Division 8.3, providing that: "A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is ( if this Division so provides ) subject to appeal to the Court under this Division." [our emphasis] For this provision to confer a right of appeal, three essential conditions must be satisfied: There must be a decision of a consent authority under Part 4. That decision must relate to a development consent or an application for development consent. The Division must expressly provide a right to appeal. The critical phrase "if this Division so provides” in s 8.6 (1) makes it clear that for appeal rights to exist, they must be found somewhere in Division 8.3. Section 8.6(2) provides that "a decision subject to appeal includes a decision made after a review under Division 8.2." Johnson Property Group clarified that this subsection does not independently create appeal rights for all decisions subject to internal review. Instead, it operates to extend existing appeal rights to decisions made on review. Power to reject development application Section 39 of the Environmental Planning and Assessment Regulation 2021 ( EPA Reg ) grants councils a discretionary power to reject a development application within 14 days of receiving it. The grounds for rejection are specified in section 39(1) of the EPA Reg and include circumstances where the development application: Is illegible or unclear as to the development being sought. Does not contain required information on documents specified in the Approved Form. Seeks consent for development that is prohibited. Is substantially the same as a development application previously refused and circumstances have not changed. Critically, section 39(2) of the EPA Reg provides that an application "is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review." Internal Review Rights Section 244 of the EPA Reg provides for an internal review of a decision to reject a development application. The application for review must be made within 14 days of receiving written notice of the council's rejection decision. This internal review mechanism allows the council to reconsider its decision administratively, but it does not confer a right of appeal to the LEC. Section 8.2(1)(c) of the EPA Act specifically provides for review of "a decision of a consent authority to reject and not determine an application for development consent." This express reference to “rejection” reinforces the statutory distinction between rejection and determination of a development application. There matters were considered by the LEC in Johnson Property Group. The factual background The Johnson case arose from straightforward but instructive circumstances. The applicant lodged a development application for the construction of cycleways and intersection improvement works. The works were to be located on both privately held land and public road reserves. The applicant provided owner's consent for all privately held land within the site. However, it did not provide owner's consent for the public roads, which were owned by the Council. On 9 October 2019, the Council rejected the development application on the sole basis that owner's consent had not been provided for all land to which the development application related. The applicant sought internal review under section 8.2(1)(c), which the Council refused. The applicant then commenced class 1 appeal proceedings in the LEC, seeking an order that the Council accept, assess and determine the development application. The applicant's arguments The applicant advanced two primary arguments in support of its appeal right: First, the applicant contended that section 8.6(2) created an independent right of appeal. The rejection decision was subject to internal review under section 8.2(1)(c). Section 8.6(2) expressly states that "a decision subject to appeal includes a decision made after a review under Division 8.2"; therefore, any decision made on review must be appellable. Second, the applicant argued that section 8.7(1) applied because the rejection of the development application constituted a "determination” of the application within the meaning of that section. The applicant submitted there was no warrant in the statutory language to draw a meaningful distinction between "decision" and "determination" such that rejections would be excluded from the right to appeal. The applicant also relied heavily on the earlier decision of Parkes v Byron Shire Council (2003) 129 LGERA 156 ( Parkes ), in which Lloyd J held that a rejection decision attracted a right of appeal. The applicant acknowledged that the statutory provisions had changed since Parkes, but submitted that the amendments only reinforced the position arrived at in that case. Additionally, the applicant argued that even if there was no appeal right, the Council had acted beyond its power in rejecting the development application. The argument was that because owner's consent had been provided for some (but not all) of the land, and because the missing consent related to land owned by the Council itself, the development application should have been assessed. The applicant noted that if the development application had been assessed and determined, the Court could have granted the missing owner's consent under section 39(2) of the Land and Environment Court Act 1979 during any subsequent class 1 appeal. The Council's response The Council's primary submission was straightforward: on a proper construction of sections 8.6(1) and 8.7(1) of the EPA Act, appeal rights are limited to "determinations" under section 4.16, not to "decisions" to reject. This distinction is critical because: A determination is made pursuant to section 4.16 to either refuse or approve a development application following assessment on the merits. A rejection is a procedural decision that operates such that the development application is taken never to have been made s 39 (2) EPA Reg. The Council submitted that this legislative intent to limit appeals to determinations is evident from the different language used throughout the EPA Act: Division 4.3 consistently uses the term "determination" with respect to the final substantive decision of the consent authority after considering the merits of an application. Division 8.2 (reviews) makes a clear distinction between determinations that are subject to review and decisions that are subject to review—rejection is referred to as a "decision," while approval or refusal is referred to as a "determination". Division 8.3 (appeals), while using "decisions" in headings, limits substantive appeal rights to determinations as specified in section 8.7(1). Regarding section 8.6(2), the Council argued that this provision does not independently confer appeal rights for all decisions made on review. Rather, it operates to clarify that where an appeal right exists in relation to a particular type of decision, that right continues to apply even if the decision has been subject to internal review. In other words, it extends existing appeal rights to reviewed decisions; it does not create new appeal rights. The Council also contended that the decision in Parkes was wrongly decided and should not be followed, as it failed to properly analyse the statutory scheme and relied primarily on the Court's powers under section 39(2) of the LEC Act without first establishing that an appeal right existed. Does section 8.6 confer an appeal right? Justice Duggan undertook a careful and systematic analysis of the statutory provisions, ultimately concluding that there is no right of appeal against the rejection of a development application. Her Honour began by examining whether the rejection decision satisfied the three requirements of section 8.6(1): Requirement 1: A decision under Part 4 The Court found this requirement was satisfied. The power to reject a development application derives from s 39(1) of the EPA Reg (then cl 51 of the Environmental Planning and Assessment Regulation 2000 ), which is made pursuant to section 4.12 of the EPA Act (which governs applications for development consent). The decision to reject is therefore a decision made under Part 4. This construction was reinforced by section 8.2(1)(c), which expressly provides for review of rejection decisions and describes them as decisions under Part 4. Requirement 2: Relating to an application for development consent This requirement was also satisfied. Section 8.6(1) refers to decisions "in relation to an application for development consent," which is broader than the defined term "development application." The rejection of a development application clearly relates to an application for development consent, even though it prevents that application from being determined. Requirement 3: The Division must provide for the appeal This is where the rejection decision fell outside the scope of section 8.6. The phrase "if this Division so provides" makes clear that section 8.6(1) does not itself create appeal rights; it merely sets the preconditions. The actual appeal rights must be found elsewhere in Division 8.3. Her Honour then considered whether section 8.6(2) could supply the missing appeal right and concluded it could not, for three reasons: The definitional nature of the provision : The use of the word "includes" indicates that section 8.6(2) operates to define or expand the scope of decisions covered by section 8.6(1), rather than to independently confer appeal rights. It clarifies that where an appeal right exists, it extends to decisions made on review. Consistency with the Division's structure : Sections 8.7, 8.8, and 8.9 each expressly confer appeal rights using phrases like "may appeal to the Court against the determination." Section 8.6(2) contains no such express language, indicating it serves a different function. The operation of section 8.6(3) : This subsection excludes certain decisions from appeal, further indicating that section 8.6 as a whole operates to define the scope of appeal rights conferred elsewhere, not to create independent rights. Accordingly, section 8.6 does not provide a right of appeal from rejection decisions. Does section 8.7(1) confer an appeal right? Justice Duggan then turned to section 8.7(1), which provides that an applicant "who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination." The critical question was whether "determination" includes a decision to reject a development application. Her Honour concluded it does not, for several reasons. Consistent statutory usage : The term "determination" is used consistently throughout the EPA Act to refer to a decision made pursuant to section 4.16—that is, a decision to approve (with or without conditions) or refuse consent. While "determination" is not formally defined, statutory interpretation principles require that a word be given a consistent meaning where it is used repeatedly in the same Act. Section 8.7(2)'s expansion : Section 8.7(2) expands the definition of "determination" to include certain post-consent decisions. This expansion reinforces that the core meaning relates to section 4.16 decisions, with extensions only where expressly provided. The language of section 8.2(1)(c) : This provision, which establishes the internal review right for rejections, refers to "a decision of a consent authority to reject and not determine an application for development consent." The express juxtaposition of "reject" with "not determine" strongly suggests that rejection is not considered a determination. Section 39(1) as context : While s 39(2) of the EPA Reg (then cl 51(3)) refers to the "determination to reject," this usage must be understood in context. The Regulation uses "determination" colloquially to mean "decision," not in the technical sense used throughout the EPA Act. This isolated usage in subordinate legislation cannot override the consistent statutory usage in the primary Act. Her Honour therefore concluded that section 8.7(1) is limited to appeals against determinations under section 4.16 (approval or refusal) and does not extend to decisions to reject a development application. The Court's conclusion Justice Duggan concluded that the applicant did not have a right of appeal against the Council's rejection of its development application. Accordingly, the appeal was dismissed. Her Honour noted that the applicant had also raised arguments about whether the Council had power to reject the development application in the particular circumstances of the case (where private landowners' consent was provided but not the Council's consent as road owner). However, as these submissions did not relate to the separate question as formulated, and as they might fall for consideration in any judicial review proceedings, Justice Duggan declined to determine them. This observation is significant: it leaves open the possibility that a council's exercise of the power to reject in certain circumstances might be challengeable through class 4 proceedings (judicial review), even though class 1 appeal rights do not exist. Key Takeaways No appeal right : section 8.7(1) of the EPA Act is limited to appeals against "determinations" under section 4.16 (approval or refusal), and does not extend to "decisions" to reject under s 39(1) of the EPA Reg. Section 8.6(2) does not assist : This provision extends existing appeal rights to decisions on review; it does not create independent appeal rights for all reviewable decisions. Internal review only : The only statutory recourse from rejection is internal review under section 8.2(1)(c), which must be sought within 14 days. Judicial review theoretically available : Class 4 proceedings remain available in cases of jurisdictional error or unreasonableness. 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.

Validity of Development Consent Conditions in NSW

By Mark Evans • January 14, 2026

This article examines the legal framework governing conditions of consent in NSW, explores key case law, and explains how and when conditions may be challenged through Class 1 or Class 4 proceedings. Statutory Basis for Conditions of Consent The power to impose conditions in a development consent arises under section 4.17 of the Environmental Planning and Assessment Act 1979 ( EPA Act ). Section 4.17 prescribes when a condition of consent may be imposed. For example, s.4.17(d) prescribes that a condition may be imposed that limits the period during which development may be carried out. The grant of development consent is the exercise of a statutory power, which means conditions of consent must: be authorised by the EPA Act or another applicable planning instrument; and comply with established common law principles governing validity. Consent authorities must therefore ensure that each condition falls within the scope of the statutory power authorizing the condition. The Newbury Principles and Their Application in NSW In addition, the condition must be reasonable. The reasonableness, and therefore validity of consent conditions is assessed by reference to the principles established in Newbury District Council v Secretary of State for the Environment [1981] AC 578. These principles have been consistently adopted by Australian courts, including the NSW Land and Environment Court. To be considered reasonable, and valid, a condition of consent must: be imposed for a proper planning purpose; fairly and reasonably relate to the development the subject of the consent; and not be so unreasonable that no reasonable planning authority would impose it. These principles are now reflected in section 4.17 of the EPA Act and remain central to the judicial assessment of consent conditions in NSW. Key Takeaways for Developers Consent authorities do not have unlimited discretion to impose conditions of consent. Conditions must remain tethered to legislation and planning controls. Conditions must be reasonable. Authorisation and the Limits of Planning Power A condition will be invalid if it is not authorised by statute, even if it appears reasonable or desirable. The Land and Environment Court has repeatedly emphasised that conditions cannot be used to achieve outcomes that fall outside the planning system. In Kindimindi Investments Pty Ltd v Lane Cove Council [2009] NSWLEC 114, the Court confirmed that councils cannot rely on s 4.17 to impose obligations more properly dealt with through private law mechanisms. Conditions requiring applicants to enter into restrictive covenants or indemnify councils are common examples of overreach. The case illustrates that planning conditions must regulate land use impacts—not private legal relationships. Nexus: The Relationship Between Conditions and Development A critical element of validity is whether the condition sufficiently relates to the development as approved. There must be a clear planning nexus between the impacts of the development and the obligation imposed. In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, the NSW Court of Appeal held that conditions must address planning consequences of the development itself, rather than broader policy objectives or unrelated outcomes. More recently, Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWLEC 121 reinforced that councils cannot impose conditions aimed at regulating hypothetical future development or alternative development scenarios. Key Takeaways for Developers Conditions must respond to impacts of the approved DA. “Futureproofing” conditions are vulnerable. Speculative controls are likely invalid. Reasonableness and Proportionality Even where a condition serves a planning purpose and has a nexus to the development, it may still be invalid if it is unreasonable or disproportionate. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, the Court invalidated conditions requiring extensive off-site works that were disproportionate to the development’s impacts. The decision confirms that conditions must be scaled to impact, not used to secure unrelated infrastructure upgrades. The threshold is high, but NSW courts will intervene where the burden imposed is excessive. Certainty and Enforceability of Conditions Conditions must also be drafted with sufficient clarity and precision to be enforceable. Conditions that are vague, uncertain, or defer essential matters to future discretion are vulnerable to challenge. A consent authority is tasked with assessing a development application and determining the application either by (i) granting consent or (ii) refusing the application: s.4.16(1) EPA Act. There is no third option and conditions of consent that introduce ambiguity or have the consequence of deferring the consent authority’s determination to a later date will be invalid. In Gales Holdings Pty Ltd v Tweed Shire Council [2021] NSWLEC 163, the Court held that conditions lacking objective standards or measurable criteria may be invalid for uncertainty. Key Takeaways for Developers Conditions must be clear and enforceable. Open-ended or vague obligations increase risk. Uncertainty may invalidate a condition. Challenging Conditions: Class 1 vs Class 4 Proceedings The appropriate pathway for challenging a condition of consent depends on whether the issue is one of planning merit or legal validity. Class 1 Proceedings – Merits Review Class 1 proceedings in the Land and Environment Court involve a merits-based re-determination of the development application. These proceedings are appropriate where: the condition is excessive but legally permissible; the developer seeks alternative or amended conditions; or the issue concerns planning judgment rather than legality. In Class 1 appeals, the Court has broad discretion to impose new or revised conditions. Class 4 Proceedings – Judicial Review Class 4 proceedings are confined to judicial review and focus on whether the condition is lawful. They are appropriate where a condition: exceeds statutory power; lacks a planning nexus; is unreasonable in the Newbury sense; or is uncertain or unenforceable. The Court does not re-determine the development application in Class 4 proceedings. Severance and Risk to the Entire Consent If a condition is found to be invalid, it may sometimes be severed from the consent, leaving the remainder of the consent intact. However, this is not always possible. In T ransport for NSW v Parramatta City Council [2020] NSWCA 139, the NSW Court of Appeal confirmed that where an invalid condition is integral to the grant of consent, its invalidity may render the entire consent invalid. This risk underscores the importance of careful strategic assessment and competent legal advice before commencing proceedings. Conclusion Conditions of development consent are a powerful planning tool, but they must operate within clearly defined legal limits. NSW courts have consistently reinforced that conditions must be authorised by statute, connected to the approved development, reasonable in scope, and drafted with certainty. Where a condition goes beyond those limits, early legal advice is essential to determine whether the condition should be challenged through Class 1 merits review or Class 4 judicial review, and to manage the risk to the underlying consent.

Closure of Public Roads by Local Councils in NSW

By Mark Evans • December 17, 2025

Local councils in NSW have statutory authority to close public roads, but affected landowners and stakeholders have specific rights under the law. This video provides a clear explanation of: The road closure process Key legislative requirements Appeal pathways through the Land and Environment Court