BACKGROUND
6.1 The issue of easements for joint services tends to overlap with the issue of access to neighbouring land for maintaining services to one’s property to the extent that consideration of one would be incomplete without consideration of the other.
6.2 As stated previously the crucial issue is whether there should be a right to have services traverse neighbouring property.
6.3 In the Sydney metropolitan area there are approximately twenty thousand properties that rely on joint services.1 These properties are concentrated primarily in the inner city suburbs of Paddington, Redfern and Surry Hills. The properties are usually terrace houses, but include some semi-detached houses. When these properties were built they were not connected to sewerage mains by individual pipes, but by means of a joint service. This service may have carried the sewage of as many as 20 dwellings to the main sewer.
THE PROBLEM
6.4 A person may wish to relocate the sewerage and drainage pipes in his or her backyard, connect the pipes to the main directly and thus avoid any joint service, or refuse to have his or her neighbour’s sewage pass under his or her property, such as, where a property has been subdivided and a pipe carries sewage from one property through the other to the main. Unless a valid easement exists, in all such cases, the neighbour has no means of preventing the adjoining owner from interfering with the service even though the consequences can be very inconvenient and expensive. For instance, it may force the neighbour to bear the cost of a direct connection to the sewerage main that would otherwise be unnecessary.
6.5 The Water Board’s current practice is to refuse applications for disconnection unless all relevant parties have consented in writing to this course of action or the application is supported by a declaration of the Court.2 In Industrial Non Wovens Pty Ltd v Wieder3 the Court made such a declaration. A declaration needs to be obtained from a Court in every instance where an easement does not exist.
6.6 In some cases, an easement for a joint service may exist although it does not appear on the Certificate of Title. For example, the easement may have been created by prescription prior to the land coming under the Torrens Title System and was omitted from the Certificate of Title, or it may be implied by the description of the property on the Certificate of Title itself.4
6.7 It has been held that easements of necessity will not apply to joint services since joint service connections are not “necessary” to the use of land. In Pryce and Irving v McGuinness5 Hanger J found that a dominant tenement had a right of way over a servient tenement as an easement of necessity (in a landlocked situation) but the claims for easements for electricity and drainage over the same land were not successful.
COSTS
6.8 A related issue which is often the subject of dispute is liability for costs.
6.9 Problems continue to arise when blockages occur in the joint service, particularly when only some of the owners have their sewerage or water service affected. There is no legal obligation for all owners to contribute to the repair bill, nor any guidelines for apportioning the cost. Moreover, according to the Water Board unresolved disputes between owners bring about demands for severance and removal of pipes from the property.
6.10 The diagram below will serve as an illustration. A, B, C and D share a joint service, with A enjoying a direct connection to the main and D being the furthest upstream:
sewer
main
| |  | Blockage
|
| | | |
| | | Joint Service Line | X | | | | |
| | | A
________ | |
|
| | B
________ | |
|
| | C
_________ | |
|
| | D
__________ | |
|
| |
6.11 If a blockage occurs at the spot marked X, sewerage or water services to C and D will be disrupted, while A and B will not be affected. The issues are, which parties should pay and in what proportion. Should all four parties contribute equally? A and B could argue that the blockage could not possibly have been due to them and refuse to pay. D may refrain from paying, preferring to wait for C to be forced to have the service repaired rather than face the possibility of sewage or water discharging onto C’s property.
6.12 Regulations 10 and 16 of the Water Board’s Plumbing and Drainage Regulation (September 1989) prohibit the sharing of water and sewerage services, except with the approval of the Board or as provided by those regulations. However, for those older properties still subject to joint services, it may be argued that regulation 9 obliges owners to be jointly responsible for the maintenance of their water main, sewerage or storm water drain. That regulation provides:
The owner of land connected to a water main, sewer or stormwater drain of the board must:
(a) install and provide, as prescribed by or under the Act, and
(b) at all times keep in good order and condition and free from defects
the water service, sewerage service or stormwater service on the land from the water main sewer or stormwater drain to the property.
6.13 The by-law does not, however, give a private right of action to sue, nor is it advisable that a person incur the legal costs and risks in suing neighbours for contribution.
NEED FOR REFORM
6.14 The need for reform is therefore not limited to the issue of easements for joint services but also to the associated question of liability for costs.
LAW REFORM IN OTHER JURISDICTIONS
United Kingdom
6.15 In 1971 the UK Law Commission published a working paper that dealt with a number of matters connected with Appurtenant Rights including easements, positive and restrictive covenants, rights of support and suggested the imposition of “Land Obligations” similar to easements or rights permanently attached to land. Those rights could be obtained by application to the appropriate Tribunal. The Commission envisaged a procedure which would follow essential facilities over other land to be obtained by private persons. Such a right would be obtained if the following conditions were met -
(a) the proposed use for development was in the public interest,
(b) the imposition of the obligation was necessary for the practical and economic development of the property,
(c) the servient landowner could be adequately compensated in money, and
(d) the refusal of the servient landowner to agree to the imposition of the obligation was unreasonable.6
6.16 Since the Lands Tribunal, constituted under the Lands Tribunal Act 1949 already had power to discharge and modify restrictive covenants, the Commission proposed that the Tribunal’s jurisdiction in this field be widened so that it would have power to impose, confirm, vary or discharge land obligations.7 The Commission also suggested that in order to discourage applications to impose land obligations from being lightly made, the whole of the costs of the proceedings be borne by the applicant. This would also reduce the risk of servient landowners being pressured to acquiesce under threat of costly proceedings being taken.8
6.17 A right of support of land by adjoining land that is in its natural state is not an easement but a natural right. This right exists in relation to both Old System Title and Torrens Title. In essence it is a negative right in that the adjoining owner is required merely not to remove support - there is no duty to take any positive action to provide support. An established scheme exists in relation to rights of support in the metropolitan area of London.9 Under this scheme a landowner proposing to excavate near an existing building is obliged to give notice of such an intention and a landowner may, (or if required by the neighbour, must) take steps to support the neighbour’s building during the operation. Although this gives an advantage to the builder who builds first, the Law Commission used the Act as a basis for reform believing it was preferable to put the burden of support on the second builder.
6.18 The Law Commission suggested that support of land and buildings should be provided for by legislation as a general right of ownership by imposing obligations on landowners to:
(i) allow the natural flow of water in a defined channel subject to the reasonable exercise of the rights of the owner of the land through which the channel passes;
(ii) not do anything which will withdraw support from any other land or from any building, structure, or erection which has been placed on it;
(iii) (in addition and without prejudice to (ii)), not excavate in circumstances which give rise to a potential danger of withdrawing support from the land or buildings of an adjoining owner without following a statutory procedure;
(iv) except in accordance with statutory provisions
(a) not erect any structure which would become a party structure or would cause an existing structure to become a party structure,
(b) not demolish, lower, raise, underpin, thicken, cut into or alter any party structure,
(v) allow an owner who desires to build close up to the line of junction to place under the land any projecting footings or foundations which are required for that purpose subject to statutory provisions as to compensation and the procedure to be followed.10
6.19 The above proposals concerning the imposition, variation and discharge of land obligations, and the introduction of certain obligations as a statutory incident of ownership, have not yet been enacted in the United Kingdom. However legislative reforms in Queensland, Tasmania and New Zealand along the lines suggested by the UK Law Commission, have been introduced.
Queensland
6.20 In 1973, the Queensland Law Reform Commission published its Report on Conveyancing endorsing the findings of the UK Law Commission with respect to the imposition of land obligations which it termed ‘statutory rights of user.’11
6.21 Having referred to the UK recommendation, the Queensland Commission noted:
6.22 By section 180 of the Property Law Act 1974 (Qld), which resulted from the report, the court is empowered to impose on servient land an obligation as to user. An application must be brought by the owner of the dominant land and the court must find that the obligation is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land.
6.23 Section 180 lists specific requirements which must be satisfied prior to the court granting an order imposing a land obligation and includes the following:
6.24 The Court retains a wide discretion to grant an order and to determine the scope of the right15 and the form of the right granted.16
6.25 Since the commencement of the Act in December 1975, there have been several reported cases dealing with section 180.17
6.26 In two of the cases orders were made pursuant to the section.18 The section has also received favourable comment from text writers.19
6.27 Although the reported cases have only dealt with applications for rights of way and none have touched on the specific area of rights of access in order to effect repairs or to obtain and maintain services, Hanger CJ stated in Re Seaforth Land Sales Pty Ltd (No 2)20 that
| | granting a statutory right of user, the court obviously has power to frame the right granted to meet the circumstances of a particular case. Subsection (2) of the section also is designed to give a large scope to allow for variations for particular circumstances. |
The provision is obviously drafted to cover a variety of fact situations, such as rights of access to and from landlocked land. Its terms are sufficiently wide to encompass the specific concern with the provision of services. Section 180 (7) (b) includes a reference to the placing of utilities on or through land, while paragraph (c) includes many types of services within the definition of utilities. This section has not yet been tested in the courts with regard to providing a right of user to place utilities on neighbouring land.
6.28 The section was envisaged to apply primarily to disputes relating to individual residential and commercial properties, rather than to commercial developments and this has proved to be the case.
6.29 Although section 180 has proved its general utility and versatility, a number of defects and deficiencies have been exposed. Consequently the Queensland Law Reform Commission in its Report No 37 suggesting amendments to the Property Law Act 1974 recommended that section 180 be amended bringing it more in line with the Tasmanian provision which was considered to be “superior in clarity”.21
Tasmania
6.30 In 1978 a provision similar to s180 of the Property Law Act 1974 (Qld) was added to the Conveyancing and Law of Property Act 1884 (Tas). In summary, section 84J of the Tasmanian Act provides for:
- Imposition by a court of a statutory right of user over land for public or private purposes in circumstances where
- the court is satisfied that the purpose is consistent with the public interest, and
- the owner of the servient land can be adequately compensated in money for any loss or disadvantage.
- The statutory right of user to take the form of an easement, licence or other right which may be created by the owners of the land.
- An order for a statutory right of user to be binding on the owners of the servient and dominant land and their successors in title.
- The right to be extinguished or modified by acts of the parties.
Sub-section (7) provides that a statutory right of user that affects any land within a plan of subdivision cannot be created under this section if it could have been created by that plan or an amendment of that plan.
New Zealand
6.31 Legislation also exists in New Zealand which empowers the government to grant the benefit of an easement to one landowner over the property of another.22 There are, however, significant departures from the Queensland and Tasmanian provisions. In particular, the law applies to “landlocked” land only, defined as land to which there is no reasonable access.
6.32 The factors that the New Zealand courts are directed to consider before making an order include:
- the type of access (if any) that existed when the applicant acquired the land;
- the circumstances in which the land became landlocked;
- the conduct of the parties involved;
- whether hardship would be caused to either party if an application for an order was granted or refused; and
- such other matters as the court considers relevant. (s129B(6)).
Payment of compensation by the applicant is at the court’s discretion (s129B(8)(a).
6.33 The court may make an order granting an easement or vesting the owner of the landlocked land with the legal estate in fee simple in any other piece of land (whether or not that piece of land adjoins the landlocked land).23 This is a drastic remedy and the New Zealand courts have not yet granted such an order.
6.34 While the New Zealand legislation is directed at a specific problem area and lacks the adaptability of the Queensland and Tasmanian provisions, it reflects the same underlying concern that land should be used efficiently without diminishing unduly the rights of adjoining landowners. The Queensland and Tasmanian provisions have been criticised for not going far enough and, in effect, achieving only piecemeal reform of this area of the law.24 Nevertheless it has been suggested that:
[O]ther jurisdictions may be interested in introducing the concept of judicially imposed statutory rights of user in respect of land. Their observance of the limited Queensland experience to date will indicate to them that such a law is not going to result in a wholesale upsetting of the rights of private property owners. It may be a novel law, but it is not really a radical one; it is merely another small means of adjustment between conflicting private property rights. By judicious use of the device, some rights may be rendered more useful and convenient. True it is that in consequence there may be some inconvenience to other rights : the palliative for the inconvenience is the payment of compensation.25
PROPOSALS FOR REFORM
Easements for joint services
6.35 Having considered law reform proposals in other jurisdictions there seems little doubt that the law in New South Wales relating to easements for joint services is in need of review. The Commission is of the opinion that if the issue of easements for joint services is resolved then the associated question of access to maintain such services will cease to exist.
6.36 The recommended option for reform is therefore in keeping with the Queensland and Tasmanian approach discussed above. As stated in section 180 (b) of the Queensland Property Law Act 1974 a statutory right of user will be defined to include any right of, or in the nature of, a right of way over, or access to, or of entry upon land and any right to carry and place any utility up, over, across, through, under or into land. A utility will include any electricity, gas, power, telephone, water drainage, sewage and other service pipes on lines with all facilities and structures reasonably incidental thereto.
6.37 The specific requirements that will need to be satisfied before the court could grant an order should be as follows-
(1) The right of user must be reasonably necessary in the interest of the effective use of land.
(2) The right must be consistent with the public interest.
(3) The owner of the servient land must be adequately compensated.
(4) The servient land owner’s refusal to accept the imposition of the user must be found to be unreasonable.
(5) The right should take the form of an easement, licence or other right which may be created by the owners of the land.
(6) An order granted by the court must be binding on the owners of the servient and dominant land and their successors in title.
(7) The right may be extinguished or modified by the acts of the parties.
Costs
6.38 Consideration might be given to establishing a scheme as to liability for costs such as that contained in sections 7 and 13 of the Dividing Fences Act 1951 (NSW). Section 7 provides
the owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute in equal proportions to the construction of a dividing fence between such lands.
Section 13 states
[w]henever any dividing fence is out of repair the owners of land on either side thereof shall be liable to join in or contribute in equal proportions to the repair of such fence.
Adjoining property owners must, therefore, apportion equally the costs for any work needed to be done on their dividing fence. Similar legislation could be enacted regarding joint services, spelling out the obligations of the parties.
6.39 This could be in line with, but less ambiguous than regulation 9 of the Water Board’s Plumbing and Drainage Regulation (September 1989) 26. Alternatively, s22 of the Building Act, 1984 (UK) could serve as a model. That section provides, inter alia, that where a local authority determines that buildings should be drained either separately or in combination, it shall fix the proportions in which the expenses of constructing or maintaining and repairing the sewer are to be borne by the owners concerned and in certain circumstances bear a proportion of those costs itself.
QUESTIONS FOR DISCUSSION
Easements for joint services
- Should there be a right to apply to a court for an easement of access, or right of way applying to neighbouring land, in the absence of an agreement for an easement or right of way?
- What factors should a court consider in determining whether to grant an easement or right of way?
- the necessity of the easement or right of way or access sought?
- the history of the title to the land?
- the circumstances by which an easement or right of way became necessary, or the land became landlocked?
- the intentions of a party at an earlier stage?
- the adequacy of monetary compensation?
- any other matter?
- In what circumstances should a court refuse to grant access, or an easement or right of way -
- only when the compensation offered is inadequate
- when the access, right of way or easement would cause inconvenience or
- is mere inconvenience sufficient to deny a right of way or access?
- Should the right of way granted by a Tribunal be capable of subsisting as a legal interest, registered on the title and binding on successors in title or should the right of way exist for the duration of the applicant’s interest in the land only?
- Is the statutory right of user as defined in s180 (7) (a) of the Queensland Property Law Act 1974 wide enough for New South Wales purposes? If not how should it be extended?
- How should the right or way be extinguished or discharged -
- by agreement of those benefited by the right of way?
- discharged by Court order, or
- when apparently abandoned by the parties?
- If there is an alternative means of access or right of way should this automatically exclude the right to an easement?
- If the alternative route or means of access is inconvenient or involves considerable expense to use, should an easement be granted?
- What public policy issues should govern the granting of an easement by a tribunal?
- Should there be any requirement akin to Section 180 (1) of the Queensland Property Law Act 1974 that the easement be “reasonably necessary in the interests of the effective use of the land” before it is granted?
- Should there be a requirement that the easement requested should not be inconsistent with the public interest?
Apportionment of Costs for Joint Services
- Should liability for costs among adjoining owners be guided by policy only or should there be legislative intervention to enforce a system of apportionment?
- Should costs be apportioned equally between neighbours even where one or more properties having the joint service are not affected?
- Should costs be apportioned only between the affected owners?
FOOTNOTES
1. Spokesperson from the Sydney Water Board as at 10 April 1991.
2. Annual Report of the Ombudsman of New South Wales for the year ended 30 June 1979 at 41.
3. Unreported, Supreme Court of NSW, Eq Div, No 4968 of 1987.
4. The discussion in chapter 4, para [4.13] concerning implied easements created prior to land being brought under Torrens Title and not being recorded on the title thereby constituting an exception to indefeasibility under s42 of the Real Property Act is relevant. See Auerbach v Beck [1985] NSWLR 424, James v Registrar General (1967) 69 SR NSW 361 and Margil Pty Ltd v Stegal Pastoral Pty Ltd [1984] 2 NSWLR 1.
5. [1966] Qd R 591 at 608.
6. The (UK) Law Commission Working Paper on Appurtenant Rights, para 118 and proposition 15, Working Paper 36 (1971).
7. ibid, paras 113-115.
8. ibid, para 119.
9. The London Building Acts (Amendment) Act 1934.
10. The (UK) Law Commission Working Paper on Appurtenant Rights, pp 66, 68, Working Paper 36 (1971).
11. Queensland Law Reform Commission on A Bill to Consolidate, Amend, and Reform the Law relating to Conveyancing, Property and Contract and to Terminate the Application of Certain Imperial Statutes Report 16 (1973).
12. ibid, para 80.
13. Property Law Act 1974 (Qld) s180 (1).
14. ibid, s180(3)(a) and see Ex parte Edward Street Properties Pty Ltd [1977] Qd. R 86 at 90 and Re Worthston Pty Ltd [1987] 1 Qd. R 400 at p403.
15. ibid, s180(7) (b).
16. ibid, s180(2).
17. Re Seaforth Land Sales Pty Ltd [1976] Qd R 190; aff’d [1977] Qd R317; Nelson v Calahora Properties Pty Ltd [1985] Q Conv R 54-202. Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86. Tipler v Fraser [1976] Qd R 272. Re Worthston Pty Ltd [1987] 1 Qd R 400.
18. Re Seaforth Land Sales Pty Ltd [1976] Qd R 190 and Nelson v Calahora Properties Pty Ltd [1985] Q Conv R 54-202.
19. H Tarlo, “Forcing the Creation of Easements - A Novel Law” (1979) 53 Australian Law Journal 254; A J Bradbrook, “Access to Landlocked Land: A Comparative Study of Legal Solutions” (1985) 10 Sydney Law Review 39.
20. [1977] Qd R 317 at 321.
21. Queensland Law Reform Commission on A Report on a Bill to Amend the Property Law Act 1974-1986, Report 37, (1987).
22. Property Law Act 1952 (New Zealand), s129B.
23. ibid, s129B(7).
24. H Tarlo, “Forcing the Creation of Easements - A Novel Law” (1979) 53 Australian Law Journal 254 at 255.
25. ibid, 263.
26. See para 6.12.
