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Easements – A Court Order in your favour is not necessarily a victory however a Court Order against you is worse

26/04/2021

All parties benefit from an early resolution.  Watson & Watson Lawyers have recently been involved in numerous Easement issues and two of which are referred to below. 

When the parties first become involved in either seeking an Easement or considering a request for an Easement, they often are mainly concerned about what compensation they will have to pay or receive.  There are other relevant issues that must be considered before one comes to the question of whether an Easement will be granted and secondly if so, what are the terms including the compensation. 

Firstly we acted on behalf of an Applicant who had received Council Approval subject to obtaining an Easement, who was seeking to obtain the Easement to drain water to enable it to connect to the Council stormwater and proceed with Development Consent.  After considering the matter, proceedings were commenced on behalf of our client against three landowners seeking an Easement.

The evidence of our client was prepared and filed.  

The Defendants resisted the claim for an Easement and the matter was listed for Mediation (in accordance with the general procedures in cases such as these).

This matter we settled on terms at Mediation.  Even though there was compensation payable to the persons granting the Easement to cover legal fees and compensation, the amount they received was significantly less than they would have received if they had not debated most issues and had not defended the matter.  There was a significant shortfall in the legal costs paid by our client to those legal fees incurred by the recipients of the compensation which very significantly diminished the compensation received by those persons who granted the Easement.

Secondly, we acted on behalf of an Owner of land who had received an approval from Council which was subject to obtaining an Easement across his neighbour’s land to enable our client to connect up to the Council stormwater. 

In this particular case on a review of the factual situation, it became apparent that there would be an issue as to whether we could establish that the Easement was reasonably required (which is one of the elements in obtaining an Easement).  This was notwithstanding the terms of the Council approval.  The Owners of the neighbouring land objected to granting an Easement and made it much more difficult than it should have been, to obtain an answer as to the terms (if any) that they would agree on.

In this case, there was no detriment to our client’s connecting into a very extensive stormwater system construction at the adjacent property which would have been at almost no costs.  Further our client was prepared to offer significant compensation to the Owner’s downstream land.

We made some suggestions as a result of which our client obtained Hydraulic Engineer’s advice and a further Application was made to Council as a result of which, approval was granted without the need for the Easement which was the condition in the previous Development Consent.

The result of this case was that our client did not incur the large costs and be burdened with large costs especially in the event that our client could not succeed. 

The determinant to the adjacent land Owner was they did not receive significant compensation by allowing our client to simply join into their existing stormwater system.

We offer an initial enquiry for a fixed fee at which we discuss your issues and thereafter you can be in a position to understand the risks and difficulties (albeit that some further investigations usually are required) in relation to you obtaining an Easement or you granting or opposing the grant of an Easement. 

If you either require an Easement to obtain Development Consent or are being asked to provide an Easement, please contact Watson & Watson experienced Lawyers in relation to the granting of Easement by contacting Richard Watson Accredited Specialist Commercial Litigation Building and Construction Stream or his Personal Assistant Shereen DaGloria to discuss your matter and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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