Access Easements (Qld)

Sometimes, a property owner cannot reasonably access their own land without venturing across neighbouring land. In this situation, under the Property Law Act 1974, the Supreme Court of Queensland can impose a right of use when it is reasonably necessary. This is known as an access easement, often providing a right of way over neighbouring land. This article defines access easements in Queensland and explains the court’s approach to granting easement applications.

What Is Right Of Use?

A right of use allows someone to access or use land that does not belong to them. A common example is when the “dominant” landowner accesses their property by passing over someone else’s “servient” land. While these applications are typically for landlocked properties, this is not the only reason for an access easement. For instance, a property owner might apply for an access easement to facilitate utility services or infrastructure installation.

Sometimes, a friendly neighbour has no issue with their neighbour driving across their property or running services under their land. However, this friendly arrangement can end abruptly if the relationship breaks down or either party sells their property. When the servient landowner refuses to grant right of use, this can inhibit the dominant landowner from accessing or using their own property. In that case, there is statutory provision for the Supreme Court to order an easement in certain conditions. The court can only exercise this power in the public interest.

Access Easements in Queensland

The Supreme Court can impose a right of user access over servient land when reasonably necessary for the effective use of the dominant land. Before seeking a court order, the dominant property owner must negotiate with the servient landowner. The owner can only apply to the Supreme Court if the servient landowner unreasonably refuses to make an allowance for access.

Compensation for access easements

Except in special cases, an access easement order must include a compensation or consideration provision. When the court assesses the compensation, the primary factor is typically the extent and nature of detriment to the servient land. The court may also consider personal factors, such as the history of the neighbour relationship, the landowner’s inconvenience and any associated work and costs.

Unreasonable Refusal

The court considers many factors when deciding whether a landowner has unreasonably refused access. The objective test is whether an ordinary person would consider the refusal unreasonable. The court does not look kindly on applications where the servient landowner’s rights would diminish for the applicant’s mere convenience.

In Bradshaw v Griffiths [2016], the Supreme Court found a servient landowner’s refusal to allow access was reasonable. In this case, the applicant owned a landlocked cattle farm in north Queensland and wanted to transport cattle across neighbouring land. His neighbour refused to allow access. The court found the refusal was reasonable because the applicant offered inadequate compensation and repeatedly threatened the landowner. The court also found threatening behaviour to be grounds for reasonable refusal in Naylor & Anor v Pierce & Anor [2010].

In Graham v KD Morris & Sons Pty Ltd [1974], the court found that a neighbour’s refusal was reasonable given the applicant’s behaviour. The applicant was building a development in Brisbane, and the respondent refused to grant access to allow a crane to swing freely over the servient land. The developer was inconsiderate to his adjacent neighbour before requesting access, and the crane’s presence was likely to decrease the value of the servient land. The court found that the respondent’s refusal was reasonable.

The recent Supreme Court case of Ward v Hull [2019] clarified the law on applications for access easements . This case concerned two adjacent Queensland cane farms. The applicant sought an access easement for an existing underground pipeline crossing through the respondent’s land. The applicant installed the pipeline in 1999 with the undocumented agreement of the previous owner of the servient land. The pipeline provided the applicant with water from a nearby creek, allowing the applicant to carry on commercial operations on the dominant land. After the respondent bought the land in 2004, the applicant continued to use the pipeline without issue until 2016. At that time, the respondent proposed that the applicant pay to lower the pipeline so that he could use the servient land for sugar cane production. The applicant refused and requested that the respondent not perform earthworks until they reached an agreement. Subsequently, the applicant sent the respondent a draft easement and valuation report proposing $5,000 compensation. The respondent insisted that they lower the pipeline so that he could use the land for cane farming.

In late 2016, the applicant found that he could not pump water because the respondent installed a pipeline junction directing the water to the respondent’s own dam. The applicant filed an application to restrain the respondent from interfering with the pipeline. The respondent proposed that the applicant either lower the pipeline, or the respondent would arrange it himself if the applicant agreed to pay a yearly fee. Alternatively, the applicant could install a new pipeline at the fence line.

The court held that the respondent’s refusal was unreasonable because the portion of access easement land was unsuitable for cane growing. The court noted that the respondent’s suggestions to lower or reposition the pipeline were poorly considered. The court also noted that the respondent was aware of the pipeline when he purchased the servient land in 2004 and raised no objections to the applicant’s use of the pipeline until 2016. The court held that the original compensation offer was sufficient.

The team at Armstrong Legal can help you apply for a right of use court order or present a valid argument to refuse on reasonable grounds. Please contact 1300 038 223 for property law advice or representation.