The new requirement for a registered easement arises vicariously through the requirement to obtain a compliance declaration under the DBP Act.



Under the DBP Act, designers and builders are now required to provide compliance declarations in respect of the design and construction of building work. “Building work” includes class 2 buildings and mixed-use buildings with a class 2 building component.

A registered design practitioner must provide a design compliance declaration if the design practitioner provides a “regulated design”: s.9 DBP Act.

If the building work involves emplacement of a ground anchor in neighbouring property, evidence of a registered easement must be included in the “regulated design”.

This requirement came into effect on 1 July 2021 through the Design and Building Practitioners – Particulars for Regulated Designs Order 2021 (Regulated Designs Order) and means that if the DBP Act applies to the building work, the builder or developer must provide evidence of a registered easement over the neighbouring property otherwise a registered design practitioner will not be able to provide a design compliance declaration as required by the DBP Act.

If negotiations for an easement are unsuccessful, an easement may be obtained from the NSW Supreme Court pursuant to s.88B of the Conveyancing Act 1919.



The NSW Land and Environment Court may also impose an easement if the necessity arises in connection with an appeal: s.40 Land and Environment Court Act 1979.

Obviously, this takes time and the preferred approach will almost always be acquisition through negotiated outcome. The Court can only make an order imposing an easement pursuant to s88K if the Court is satisfied that the applicant has made all reasonable attempts to obtain the easement but has been unsuccessful.

Further, the applicant bears the onus of convincing the Court that the easement is reasonably necessary for the effective use or development of the site: Gordon v Lever (No (02) 9145 0900 NSWLR 427.

The concept of reasonable necessity refers to a consideration of the alternative methods by which the proposed development could be achieved. The requirement means something more than mere desirability or preference over the alternative means available, but it does not mean “absolutely necessary”: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [154]-[159].

Builders and developers should be aware of the new requirement to obtain a registered easement for the emplacement of ground anchors in neighbouring land if the DBP Act applies to the development.

Negotiations with adjoining landowners should be commenced early and reasonable compensation for the easement offered.

If all attempts at obtaining an easement are unsuccessful, builders and developers should consider the viability of alternative methods to achieve the proposed development without the easement before seeking an easement through a court order.

If you wish to discuss this blog or have any questions regarding easements or other property law related issues please contact Mark Evans on (02) 9145 0900.