What do the Loch Ness Monster and statutory easements have in common?

Property & Body Corporate

Well, nothing really. But they do share this same issue: whether they even exist.

Whether a statutory easement exists in favour of a lot owner or body corporate, much like the Loch Ness Monster, is hotly contested, and often misunderstood by practitioners in this area.

What we mean by ‘statutory easement’ is a right of way that legislation gives to one person to go through another person’s property.

The law says that an easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.

The key being how to determine what is ‘reasonably necessary’?

The Queensland Civil and Administrative Tribunal recently heard an appeal from a lot owner that argued he should be able to install the compressor of his split-system air conditioner on common property because the legislation gave him a statutory easement to do so.

The Tribunal disagreed and said that a statutory easement did not exist in his favour in that circumstance. In reaching the decision, the Tribunal set out the following test for when a statutory easement will be found to exist over common property in favour of a lot owner:

  1. the supply of the utility service (in that case, air-conditioning) cannot be performed or achieved without the utility infrastructure (in that case, compressor unit) being installed on common property;
  • there is no feasible or reasonably available alternative location for the compressor unit;
  • the location of the compressor unit would unreasonably prevent or interfere with the use and enjoyment of the common property.

Importantly, even if a statutory easement exists, it doesn’t trump any requirement in a scheme’s by-laws to obtain prior approval, but simply informs whether any approval should be given.

You can read the case in full here.

While this test provides some clarity to the law about statutory easements generally, it does not remove the doubt entirely, and it is recommended that body corporates and lot owners obtain legal advice specific to their circumstances.

And as for the Loch Ness Monster, we don’t think it exists, but that’s a story for another day.

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