One of the requirements of the grant of a valid easement is that the rights must not amount to rights of joint occupation or substantially deprive the servient tenement owners of proprietorship or legal possession. If the grant of an easement leaves the owner of the servient tenement with very few rights over that property, the rights claimed will not constitute an easement, but rather rights of joint user.

The Neighbours argued that the easement would give the Developer a right of exclusive or unrestricted use of their land. The Developer disagreed on the basis that the easement would be underground and the rock anchors would be capable of being de-stressed over time.

The Court held that the easement would confer extensive rights on the Developer in respect of the subterranean parts of the land, and that the rights would largely eliminate the capacity of the Neighbours to use and enjoy possession of those parts of the land, including by carrying out any significant excavation. Further, the rights would impose a significant practical restriction upon development of the land in that period.

However, whilst the effect upon the rights of the servient owners would be extensive, the owners would retain reasonable use of their land as a whole. Further, the rights conferred on the Developer would be restricted to works required for the carrying out of installation, maintenance and de-stressing of rock anchors, and would not deprive the Neighbours of any rights of ownership, including rights of possession. Consequently, the Court held that the proposed easement was a valid easement.

Although there were alternative means of retaining the land during excavation, such as a bracing system, the Court held that the proposed rock anchors were a reasonable means of retaining the faces of the deep excavation. This was because the rock anchors were a safer method than the alternative suggestions, and at least $1.4 million cheaper than a bracing system.

The Neighbours submitted that development of the Developer’s land using rock anchors would be contrary to the public interest as it would delay their own development and would not significantly improve the progress of the development on the plaintiff’s land. The Court held that the easement was not inconsistent with the public interest, as the easement would facilitate the carrying out of an approved development in a safe and efficient manner.

The Court was also satisfied that the Neighbours could be adequately compensated for any loss or disadvantage that may arise from the proposed easement.

The Developer and the Neighbours had engaged in negotiations for more than 6 months concerning the obtaining of access to the Neighbours’ land, including for the purpose of installing temporary rock anchors. Further, on the final day of hearing, the Developer offered to pay the Neighbours up to $192,000 in compensation for the easement, but this was rejected. The Court held this demonstrated reasonable attempts at negotiations.

Although the easement would have a ‘substantial’ impact on the Neighbours, the Court held the Neighbours could be adequately compensated for the loss or disadvantage imposed by the easement. The Court ordered the Developer to pay compensation in the sum of $267,000 plus costs.

Taking all the circumstances concerning the easement into account, including the matters agreed between the parties concerning the terms of the easement, the Court held that it should proceed to exercise its discretion in favour of the grant of relief. The easement was granted to the Developer.

This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation. Please contact us if you require advice on matters covered by this article.