The case of Gordon v Lever (No 2)  NSWCA 275 is a case concerning the imposition of easements by the Court. The case and its procedural history featured much discussion on what constitutes an easement as “reasonably necessary” under section 88K(1) of the Conveyancing Act 1919.
The appellants and respondents owned neighbouring properties adjacent to the Richmond River. The appellants accessed their property through land owned by the respondents until a bridge passing over a gully wholly on the respondents’ property (forming part of the access route) washed away. As a result, the only means of accessing the appellants’ land was by crossing the river over a ford, which was not safe to cross at certain times during the year. Such access also constituted trespass onto Crown land. The appellants applied for an easement over the respondents’ land, over the route which had been used prior to the bridge being washed away. The easement required the construction of a new bridge over the gully which would be wholly on the respondents’ land, providing little practical benefit to the respondents.
The matter was first brought before the Supreme Court in September 2017 (in Stanley Robert Gordon and Anor v Allen John Lever  NSWSC 1282). In determining whether the easement was “reasonably necessary”, Sackar J at  applied the test formulated by Hodgson J in 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 at 508-9 that “the use or development with the easement must be (at least) substantially preferable to the use or development without the easement.”
Several easement options were discussed:
- Option 1 followed the route that had been used prior to the bridge being washed away, involving travelling on along a series of roads that would eventually involve passing through the respondents’ property.
- Option 4 commenced from a different point to option 1, involving passage through lots owned by the appellants, the usage of a gravel road (to the riverbank) that leads to a ford, and crossing the Richmond River at that point.
His Honour was satisfied that “an Option 1 easement limited to circumstances where Option 4 is [was] unsafe could be drafted and imposed with sufficient precision.” His Honour recommended that concrete pegs be placed in the riverbed of option 4; a measure that would aid entrants in gauging whether the use of option 4 was unsafe (in which instance the use of option 1 would be rendered necessary). The parties were invited to prepare the terms of the proposed easement in conformation with the reasons his Honour had established. A short hearing was then held in November 2017, in which his Honour made a declaration that the option 1 easement over the respondents’ land was reasonably necessary for the effective residential and agricultural use of the appellants’ land, “but only when the Richmond River at Option 4 is [was] impassable.”
The appellants sought leave to appeal this decision (in Gordon v Lever  NSWCA 43), asking the Court of Appeal to make a declaration that was similar in substance to that previously made by Sackar J above, but which omitted the limiting qualification. The Court of Appeal remitted the case for hearing upon several findings:
- There was not enough information as to the terms of the proposed easement to determine whether it was reasonably necessary.
- There was no evidence that there would be no difficulty in parties being required to draft the terms of the easement in the manner prescribed by Sackar J.
- The declaration made by Sackar J lacked specificity as to the easement’s impact on the servient tenement.
- Under section 88K, the Court is required to specify the conditions relating to an easement in the order imposing the easement.
The aforementioned reasons following the outcome of the appeal were considered in the remitted hearing (Gordon and Anor v Lever  NSWSC 1888). Upon a review of the expert analysis presented during the hearing, Sackar J found that the option 1 easement was reasonably necessary, and stipulated the following terms:
- The easement could be used by emergency vehicles at any time.
- The easement could be used by pedestrians and other vehicles:
- during times in which the water level at the Richmond River crossing (option 4) is 300mm or more above the bed surface level at that location; or
- if either the approach or exit track at the Richmond River crossing (option 4) is damaged by flooding of the Richmond River to such an extent that it is not reasonably and safely passable by a 2 wheel-drive vehicle, for a period of 14 days following the occurrence of that damage.
The validity of these terms was explored in Gordon v Lever (No 2)  NSWCA 275.
The limitations imposed by Sackar J in the first instance were held to be invalid for various reasons. Some notable reasons were:
- That access to land, even if lawful, should not require an assessment to be made by the entrant of the height of a river at a particular point. Not all conditions would permit a reliable assessment .
- The fact that the primary judge’s order would result in any entrant seeking to cross on foot being required to wade through the water unless the river was totally dry .
- The fact that there was evidence that in times of and following flood or high waters, the gravel road along the river which needed to be followed for about 120m before reaching the ford, may be damaged and require repair .
- The fact that the standard set by the primary judge in the second limitation pertaining to damage of the approach or exit track, the wording of which was “to such an extent that it that it is not reasonably and safely passable…for a period of 14 days following the occurrence of that damage” required the user to:
- make an assessment of the condition of the 120m approach or exit track before knowing whether he or she was entitled to use the easement; and
- assumedly know when such damage occurred.
As such, Bell P at  noted that the inability to formulate terms that allowed clarity as to when the easement could be used supported the conclusion that an easement unrestricted as to time was reasonably necessary.
Consideration of “Reasonable Necessity”
His Honour noted the following whilst discussing “reasonable necessity”:
- Alternative methods by which the proposed use or development could be achieved should be considered .
- One should assess the factual circumstances as they exist at the time of the hearing .
- One should also consider the effect of the grant of the easement upon the servient tenement .
His Honour also considered the following questions at :
- Whether the easement in such a circumstance was something more than merely desirable or
- Whether the use or development with the easement was at least substantially preferable to the use or development without the easement.
In the remitted hearing, the primary judge provided a thorough analysis on case law pertaining to the concept of “reasonable necessity”, stating at  that “reasonably necessary does not mean there must be absolute necessity, but the need must go beyond mere desirability or convenience” (citing Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845). His Honour went on to state that “there may still be a necessity for the easement sought, notwithstanding that there are alternative sites for an easement” and that the “criterion requires an analysis of the whole picture including the effect on the proposed servient tenement.” Although his Honour had expressly applied the test formulated by Hodgson J in 117 York Street in the initial hearing, the case was merely mentioned in the judgment of the remitted hearing (being excluded from the summary put forth at  entirely).
Gordon v Lever (No 2) reinforces the requirement of the aforementioned considerations for “reasonable necessity” that were raised in the remitted hearing. The case simultaneously exemplifies the fact that in specifying the nature and terms of an easement, the Court must make an order that is sufficiently clear, and practically and legally workable in all circumstances for all persons affected by the easement. Whether an easement is “reasonably necessary” requires a consideration of all the circumstances as they exist at the time of hearing, the implications on persons affected by the easement, and whether alternatives are available.
In his Honour’s review of “reasonable necessity”, Bell P expressly considered both whether the easement was “more than merely desirable or preferable”, and also whether the use or development with the easement was at least substantially preferable to the use or development without the easement. The case therefore suggests that in addition to the aforementioned factors for consideration, that the test under 117 York Street is not the sole, determinative test that one should apply when considering whether an easement granted under s 88K(1) is “reasonably necessary”.
The two tests are substantially different. Applying the test of the effective use or development of the land will have the consequence of mandating a consideration of whether the proposed easement “must be reasonably necessary either for all reasonable uses or developments of the land, or else for some one or more proposed uses or developments which are (at least) reasonable as compared with the possible alternative uses and developments” (117 York Street at 508-9). The test formulated by Bell P, although similar to that in Tregoyd Gardens, is materially different, as the test under Tregoyd Gardens applied the terms “merely desirable or preferable” to available alternatives. Bell P’s statement, however, applied the terms “merely desirable or preferable” to the factual circumstances as a whole. The test is substantially different to that put forward in 117 York Street. One considers the easement’s impact on the use and development of the proposed dominant tenement’s land. The other considers what is more than “merely desirable or preferable” in the factual circumstances. It is not expressly stated whether both questions should be considered jointly, or if one is superior to the other. Therefore, if parties are seeking the creation of an easement under section 88K(1) of the Conveyancing Act 1919, they should frame their arguments in light of both tests, particularly until further guidance is provided as to how each test should be applied.
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