30 The Defendant urges that the Court should not, in the exercise of its discretion, change the Plaintiffs' use of the servient tenement from a mere permission into a legal right. Mr Fraser, who appears for the Defendant, in his helpful argument strongly submits that the servient tenement is community land reserved for public purposes and that there is no need to change the Plaintiffs' ability to use it, in common with other members of the public, into a private right. He says that such a change would be inconsistent with the public interest which the Court is required expressly by s.88K(2)(b) to consider.
31 The Court never makes an order under s.88K(1) lightly. The Court must be particularly cautious when the proposed servient tenement over which the easement is sought is community land. That land has been designated as being retained for the benefit of the public for the indefinite future. Its appropriation for private use by recourse to s.88K must be jealously scrutinised.
32 The Plaintiffs' solicitor, Mr Harvey, in his capable submissions, places strong reliance on the decision of Bryson J in Marshall v Council of the City of Wollongong, in which the Court made an order under s.88K(1) granting an easement over community land. On the other hand, Mr Fraser says that the facts of that case were significantly different from the facts of this case. In Marshall the community land over which the plaintiff sought an easement was, by virtue of its difficulty of terrain and its environmental sensitivity, such that it was not practical for the council to develop it for any form of use by the general public: see esp. at p.79.
33 The servient tenement in the present case could not be said to fit that description. It is certainly conceivable that at some time in the future the Defendant will wish to put the servient tenement to a particular use which will conflict with the easement which is now sought by the Plaintiffs.
34 I do not think that it is in the public interest that an easement be created under s.88K(1) over community land so as to confer private rights which are any greater than they need to be to meet the uses to which both the dominant tenement and the servient tenement are put at the time of the order..
35 Under s.88K(3) the Court is to approve the terms upon which the easement is created. In the present case the Plaintiffs volunteer a term to the effect that if they redevelop or subdivide their Property in the future they will release the easement. This is an entirely appropriate term to protect against the unnecessary retention of a private right over public land. If the Plaintiffs redevelop the Property, it will be up to them to do so in a way which permits them access to the rear of the Property without recourse to public land.
36 However, I would go further to protect the public interest. As a condition of making an order under s.88K, I would require the Plaintiffs to consent to the inclusion of a term in the easement to the effect that if the Defendant requires the servient tenement for a particular use which is inconsistent with retention of the easement, the Plaintiffs will release the easement to the extent necessary to give effect to that purpose. If this condition also is embodied in the terms of the easement, I am satisfied that the easement will not be inconsistent with the public interest as required by s.88K(2)(b).
37 Finally, on the issue of discretion I have had regard to two objections from members of the public to the creation of the proposed easement. Both of those objections misconceive the use and extent to which the servient tenement would be put if the easement is granted. I do not think that those objections should be given any weight in the exercise of the Court's discretion.
Compensation