What to do when you need an access easement

Situations sometimes arise where an owner of the land is unable to gain reasonable access to their land or, in some cases, is unable to access their land at all, without traversing neighboring land.

In Queensland, the Property Law Act 1974 confers a power on the Supreme Court to impose a right of user in respect of land (the servient land) where that is reasonably necessary in the interests of effective use in a reasonable manner of another land (the dominant land).  Such a right of the user will usually take the form of an easement and may include a right of way over the servient land.

The Court cannot exercise this power unless it is satisfied that it is consistent with the public interest that the dominant land should be used in the particular manner proposed by the owner of the dominant land.

The Court must further be satisfied that the owner of the servient land can be adequately compensated by money for any loss or disadvantage which he or she might suffer from the imposition of the obligation.  Except in special circumstances, an order granting a right of the user must include a provision for the payment by the applicant of just compensation or consideration.  In assessing compensation or consideration, the primary factor for the Court will usually be the nature and extent of the detriment to the servient land or the value of the interest taken from it.   

Personal factors may also be relevant.  These might include:

  1. inconvenience to the respondent if the application is granted; 
  2. how the situation which resulted in the application came about; and
  3. the extent and costs of work which could properly be ordered to be done by an applicant as one of the terms of an order.

The power cannot be exercised unless the Court is further satisfied that the owner of the servient land has refused to agree to accept a proposal for the imposition of the obligation and his or her refusal is in all the circumstances unreasonable, or no person who possesses the necessary capacity to so agree can be found. 

It is not a prerequisite of an order for the imposition of a right of the user that the dominant land is landlocked.  However, the evidence in support of an application will be examined by the Court with particular care to ensure that the proprietary rights of a respondent are not unnecessarily diminished for reasons of mere convenience to an applicant.

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