This article was written by Nancy Wang Principal Solicitor at W & G Lawyers.
You have bought a block with room for a second dwelling or a small subdivision. The engineer’s report arrives, and it says the stormwater from the new lots has to drain downhill through the property behind you. The neighbour is not interested in selling a strip of land, and is not interested in an easement either. Or you are that neighbour, and a letter has arrived with a deed to sign and a compensation figure already worked out.
Queensland law allows a court to impose a right over someone else’s land in limited circumstances, even where the owner objects. A recent decision of Queensland’s Court of Appeal shows how that power works, where it stops, and how expensive it may be to get wrong. The developer in that case ended up with no easement, an order to pay the neighbour’s legal costs at trial and on appeal, and a costs order against its director personally. If you are on either side of a dispute like this, the decision is worth understanding before any letter is sent.
What a court-imposed easement is
An easement is a right that one property enjoys over another. Common examples are a right of way, a right to run water, sewerage, power or drainage pipes, and a right to enter a neighbour’s land for a limited time to carry out works. Most easements are created by agreement and registered on the title. When agreement cannot be reached, a landowner may apply to the Supreme Court for what the legislation calls a statutory right of use.
The court’s power is deliberately confined, because it takes away part of a neighbour’s property rights against their will. In broad terms, the court may impose a right of use only where it is reasonably necessary for the effective use and development of your land, where it is consistent with the planning rules that apply to the area, where the intended use or development is consistent with the public interest, where the neighbour can be adequately compensated in money, and where you have made reasonable attempts to reach agreement and the neighbour’s refusal was unreasonable in all the circumstances. If the court does impose the right, it must fix the compensation you pay, and the order is registered on the title so that it binds future owners of both properties.
Queensland’s property legislation was rewritten with effect from 1 August 2025. The recent decision was made under the earlier provision, and the points below apply with equal or greater force under the new one.
What happened in the recent case
Three adjoining residential lots sat between two suburban streets. The developer’s lot fronted one street and had no access to the other. Its subdivision plans needed a drainage easement across the neighbour’s lot to the street behind. The developer first tried to buy part of the neighbour’s land, then floated a granny flat arrangement, then returned to seeking an easement. Over roughly a year and a half it served six “offers of compensation” on the neighbour. The first five were tied to a deed that would have allowed the council, or the developer itself, to enlarge the easement area later at the council’s discretion. The developer filed its court application before it had even lodged its development application with the council.
The court application asked for an easement “in such terms and dimensions as approved by” the council. The developer’s own engineer accepted in the witness box that the easement might be 2 metres, 2.7 metres or 3 metres wide depending on which document the council applied.
The trial judge imposed an easement of not more than 27 square metres with conditions, and found that the neighbour’s refusal of the sixth offer had been unreasonable. The Court of Appeal disagreed and set the easement aside. Three parts of its reasoning matter to homeowners.
First, the court cannot hand its power to the council. An application that asks for whatever the council eventually requires does not give the court anything it can assess. The court has to be satisfied about necessity, public interest and compensation for a particular easement, and it cannot do that for an easement whose size and terms are to be decided later by someone else.
Second, it is not the judge’s job to rescue the application. The trial judge had treated 27 square metres as the proposal because that figure had been mentioned during the hearing. The Court of Appeal held that the developer had never actually asked for that, and that the judge was not required to fashion an acceptable proposal out of the material the developer had put forward.
Third, a neighbour who refuses an uncertain offer is not being unreasonable. The sixth offer still left the form of the easement to whatever the council required. Since nobody could say exactly what the neighbour was being asked to give up, refusing to give it up could not be unreasonable.
If you are the one who needs the easement
The practical message is to do the work before you file. The Court of Appeal said that in most cases where a development needs council approval, the sensible course is to obtain a development approval that is conditional on the court granting a specific easement, or at least to come to court with a definite proposal of what the council is likely to require. What is not acceptable is an application for a right that can be varied at the discretion of a third party.
In practice that means a survey plan showing the exact area, an engineering design for the works, and a draft easement setting out the terms, including any construction zone, access rights, maintenance, insurance and reinstatement. Each offer you make to the neighbour should be capable of being accepted as it stands. An offer that says the details will be sorted out with the council later may count against you when the court considers whether the neighbour’s refusal was unreasonable, and it may leave you with nothing to show for the money spent.
You should also think about the least intrusive right that would do the job. A permanent easement that attaches to the land forever is treated with more caution than a temporary licence to enter for a fixed period, for example to erect scaffolding along a boundary. If a temporary right would serve, ask for that.
If you are the neighbour
You are entitled to say no to a proposal that does not tell you exactly what land is to be taken and on what terms, and the court may well regard that refusal as reasonable. You are not entitled to stonewall a clear and reasonable proposal with fair compensation in the hope of stopping the development altogether. If the requirements are met, the court can impose the easement, and you then receive compensation rather than a veto.
The best response to a vague demand is usually a courteous letter asking for the missing detail, the survey plan, the engineering design, the council’s written requirements and the proposed terms, and inviting a definite proposal. That letter may later be the evidence that your refusal was reasonable. If you have plans of your own for the land, put them in writing early with support from a planner or engineer, because a wider or uncertain easement may affect your ability to develop, and that affects both whether the easement should be granted and how much compensation is payable.
Who pays the legal costs
Legal costs are where these disputes become very expensive, and the recent decision deals with them in some detail.
The starting point is that the applicant pays. Under the law as it now stands, the costs of a court application for a statutory right of use are generally payable by the person who applies, unless special circumstances exist. That is a change from the earlier position, which simply protected the neighbour from an adverse costs order. Even an applicant who succeeds in obtaining the easement may be ordered to pay the neighbour’s costs of the proceeding as well as their own. Anyone considering an application should budget on that basis from the outset.
Costs generally run from the date the proceeding is started. In the recent case the neighbour’s legal fees had been fixed at $40,000, but the Court of Appeal reduced the figure to a little over $37,000 to remove invoices for work done before the court application was filed. The neighbour’s fees for responding to the earlier offers were therefore not recovered as costs. Whether fees of that kind could instead form part of the compensation payable if an easement is imposed was not decided, and it may be an argument worth running in a future case. If you are the neighbour, keep your legal invoices separated by date so that the recoverable amount can be proved.
Costs may be awarded on the indemnity basis. The usual rule is that a successful party recovers only part of what they actually spent. The court may order a higher, indemnity basis of costs where there is something special about the case, such as an application that was never capable of succeeding or blameworthy conduct by the losing party. In the recent case both were present. The application, as framed, could not succeed, and the trial judge had found that the developer’s correspondence showed “an entitled and bullying attitude” that persisted into the trial. Letters written in frustration, telling the neighbour to instruct better lawyers or not to have their lawyers write back except to accept the offer, were quoted in the judgment. The Court of Appeal rejected the argument that the developer’s director should be judged more leniently because she was not a lawyer. Some friction between neighbours is expected in these disputes, but an applicant does not have free rein in how they conduct themselves.
Costs may be ordered against the person behind a company. The developer was a company. The trial judge found there was reason to believe the company was not one of substance, that the director had run the litigation personally and had an interest in its outcome, and that the neighbour had warned in writing before the trial that a personal costs order would be sought against her. On that basis the director was ordered to pay the neighbour’s costs personally, and that order was not challenged on appeal. Running a development through a company may not shield you from the costs of a failed application, particularly where the neighbour puts you on notice early.
Compensation is separate from costs. If the easement is imposed, you pay compensation for the land affected, for any effect on the neighbour’s title and property value, and for disruption during construction. Legal costs come on top of that, and so do the costs of any appeal. In the recent case the developer was ordered to pay the neighbour’s costs of the appeal and the cross-appeal in addition to the costs below.
Practical steps
If you need an easement, get the proposal right before you approach your neighbour, treat every offer as one you would be content for a judge to read, and take advice on the likely compensation and total costs exposure before filing anything. If you have received a demand, do not sign a deed under time pressure, ask for the detail in writing, keep every letter and invoice, and put the other side and its directors on notice that you will seek your costs from them personally if the application fails.
How W & G Lawyers can help
Our property and litigation teams regularly advise landowners on both sides of easement and access disputes, from negotiating and drafting easements and deeds to court applications and defending them. If you are planning a development that depends on a neighbour’s land, or you have received a demand for an easement, we would be pleased to discuss your position.
References
- M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257; (2024) 21 QR 158 (Flanagan JA, Boddice JA and Kelly J agreeing), on appeal from M Salazar Properties Pty Ltd v Jeffs [2024] QSC 9 and [2024] QSC 86 (Hindman J)
- Property Law Act 2023 (Qld), ss 180 and 181 (in force from 1 August 2025)
- Property Law Act 1974 (Qld), s 180 (the provision considered in the decision, since repealed)
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