Easements – Court Order in your favour is not necessarily a Victory however a Court Order against you is worse – Settlement preferred if possible

12/07/2021

The person seeking the Easement usually believes that it is their right to obtain an Easement. This is not always the case.  However in various circumstances, the Court will order that the neighbour/s grant the Easement.

Accordingly each matter must be considered having regard to the circumstances that arise and care needs to be taken to consider and discuss.

In 2019 we received instructions to act on behalf of the Owner of land (No 69) in the Northern Beaches area whose adjacent owner (2 doors upstream) (No 73) was seeking an Easement to drain water over our client’s land and land of adjacent neighbours at No 71 and No 67.

The Owner of No 71 originally objected to the granting of an Easement and had engaged lawyers and experts including a Hydraulic Engineer to prepare for the defence of any proceedings that may be commenced by the Owner of No 73.

The Owner of No 73 required an Easement to drain water from No 73 as a condition of an approved Development Consent for a development at No 73.

In light of the apparent position of the Owner of No 71 to refuse the Easement request by No 73 even though our client was initially hesitant in the granting of an Easement however having regard to the estimate of costs to defend any proceedings that the Owner of No 73 would commence (if agreement could not be reached in particular between the Owner of No 73 and the Owner of No 71) we discussed with our client possible alternatives available.  We considered the defence likely to be raised by the Owner of No 71.

We shortly thereafter obtained instructions to make an offer to the Owner of No 73 whereby our client would allow an Easement on reasonable terms. 

One of the offers by our client to the Owner of No 73 (on our recommendation) was to attempt to agree on an amount for compensation and our legal fees at that early stage.  The legal fees to that date would be payable however the compensation would only be payable if the Easement was granted by the Owners of No 71 and 67.  For some unknown reason the Owner of No 73 who wanted the Easement and was required to have an Easement either as sought or through alternative properties to develop his land, did not engage with our client’s offer. 

The effect of this was that our client was dragged through the protracted negotiations and litigation proceedings. 

Eventually the matter was resolved at Mediation at a greater cost to the Owner of No 73.

However before the resolution there were very significant costs incurred in particular by the Owner of No 73 and the Owner of No 71 and subsequently by our client in the circumstances that occurred.

During 2020 the Owner of No 73 (the Plaintiff) filed a Summons in the Supreme Court of New South Wales against the Owners of each of No 71, No 69 and No 67 seeking an Easement to drain water. 

The Plaintiff had filed evidence of the Owner of 73, and a Hydraulic Engineer on behalf of the Plaintiff. 

There was significant correspondence between the Defendants and the Plaintiff trying to ascertain exactly the form of the Easement sought and the basis of the claim by the Owner of No 73.  

Other issues arose which needed to be considered having regard to existing Easements over the various properties and having regard to the existing drainage in the adjacent properties.

During 2000 the Plaintiff filed further evidence and various amendments to the Statement of Claim amending the claim. 

Often in the original proceedings, the documents filed on behalf of the Plaintiff seeking the Order include a Summons setting out the exact terms of the Easement sought and all the evidence to establish the Plaintiff’s entitlement to an Easement.  This is often (but not always) the preferred course as the Plaintiff needs to either obtain agreement or a Court Order to obtain the appropriate Easement to enable the development to proceed.

In our experience, agreement is more likely to be obtained early if the person seeking the Easement has the documentation prepared which would be sufficient to establish their case in the event that agreement cannot be reached.

If it is clear that there will be a defence or defensive attitude to be adopted by one of the land owners who is disputing the entitlement to the Easement, then the preferred course is for the Plaintiff who is seeking the Easement to have the appropriate evidence in an appropriate form before commencing proceedings.

Each matter is different and care needs to be taken to consider the attitudes of the parties (and their Lawyers) to ascertain the appropriate way to proceed and negotiate.  Also other alternatives should be considered.

In this case the Defendants (the Owners of No 71, No 69 and No 67) in an attempt to reduce their costs, agreed to instruct one Valuer to value the appropriate compensation for the Owners of each of No 71, No 69 and No 67 for the grant of the Easement.  This required separate valuations for each of the properties as there were different factors that needed to be taken into account however, this did reduce the total cost for the Defendants in relation to that expert evidence.

Also on behalf of our client, we advised that our client did not need to instruct and incur the cost of instructing a hydraulic engineer having regard to the actual hydraulic engineer engaged on behalf of the Owner of No 71.  We are familiar with various consultants engaged in these types of matters. 

The Defendants did file evidence on their behalf and responded to the Plaintiff’s evidence.

Mediation

Thereafter in accordance with the usual practice of the Court, the parties attended a Mediation in an attempt to resolve the matter.  One important issue at the Mediation on behalf of our client was that an offer had been made more than 10 months earlier to settle the matter.  This placed additional pressure on the Plaintiff to resolve the matter.  The Plaintiff’s commercial position was that without an Easement, the Plaintiff’s development could not proceed.  Having expended large funds to progress the matter, the Plaintiff eventually settled with each of the Owners of No 71 No 69 and No 67 agreeing to pay each of their costs and appropriate compensation.  As far as our client was concerned, the total amount paid to our client was more than double what our client had offered to accept 10 months earlier.

The matter has only just resolved after years of delay for the developer.

Litigation involving Easements is different to most other litigation in particular, having regard to the cost consequences of the litigation and that in almost all cases, the person seeking the Easement is ordered to pay the costs of each of the Defendants which is in addition to their own costs. 

This does not mean that the Defendant will be fully reimbursed for his or her costs in the litigation.  There are some circumstances such as making an appropriate offer that may enhance the prospects of being reimbursed a greater share of their costs.

At Watson & Watson Lawyers our experienced Solicitors can assist you if you are seeking any advice in relation to an Easement whether you are the owner seeking the benefit of an Easement or you are the owner of land which another is seeking the benefit of an Easement from you.  Please contract Richard Watson, Accredited Specialist Building and Construction or his Personal Assistant Shereen Da Gloria to discuss the matter and seek timely 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.