Easements in Queensland will either benefit or burden property.

An easement will grant a right to the benefited land to use or access the burdened land for one reason or another, most commonly for access or for infrastructure services to run through. All easements should be registered and will appear on a title search of both the benefited and burdened land. The Land Title Act 1994 (Qld) governs the creation of easements while the Property Law Act 1974 (Qld) (“the Act”) determines the instances when a court may intervene and extinguish them.

Sadly, disputes in relation to easements are quite common. Sometimes, the easement documentation is vague in relation to the rights conferred and responsibility for costs and/or maintenance.

Most disputes are encouraged to be solved amicably between the parties, however disagreements do arise.

In the event the interpretation of the easement is not agreed, either the benefited or burdened lot owner may seek a determination from the court. Section 181 of the Act grants the courts the ability to modify or extinguish an easement. In the Supreme Court decision of Eucalypt Group Pty Ltd v Robin BC200300984 [2003] QSC 063 the application of section 181 was considered regarding an access easement.

It was the view of Ambrose J at paragraph 79:

“Under s181(1)(a) the applicant must show either –

• The respondents have changed the “user” of their allotment; or
• A change has occurred in the character of the neighbourhood; or
• Other material circumstances.

Which require that the easement be deemed obsolete under s.181(1)(d) of the Act and that the proposed extinguishment of their easement will not substantially injure the respondents.

Under s181(1)(b) the applicant must show

1. That the continued existence of the easement would impede some reasonable user of the applicants land, and
2. That the respondent’s easement in impeding that reasonable user of the applicant’s land either:
3. Does not secure to the respondents any practical benefit of substantial value, utility or advantage to them, and
4. That the continued use of the easement would be contrary to public interest, and
5. That money would be an adequate compensation for the loss or disadvantage which the respondents will suffer from extinguishment of their easement.

And under s.181(1)(d) that the proposed extinguishment of the respondents’ easement will not substantially injure them.”

Further at paragraph 84, “[t]he discretion given to a court to extinguish an easement under s181(1) depends upon the applicant proving either the fact prescribed by s181(1)(a) or those prescribed by s181(1)(b). 

If the facts prescribed in either one of those subsections are proved, the applicant must then also establish the fact prescribed in s181(1)(d) of the Act to enliven the discretion under s181(1)(a) of the Act to extinguish or modify the easement”.

In this case sufficient grounds were not established under s181(1)(b) for the court to extinguish the easement. This case does however provide insight into the consideration that need to be had when seeking an order of this nature.

How We Can Help

Ryan Murdoch O’Regan Lawyers have years of experience preparing easements, as well as registering these documents and the survey plan to which they pertain.

We prepare easements for property developers, local authorities and private individuals.

Our team of lawyers are experts in their field and go above-and-beyond to deliver the best result, each and every time.

We are proud to provide 5 star customer service to our clients.

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Get the best representation. Contact Ryan Murdoch O’Regan Lawyers on 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.