Legislation in New South Wales enables the Supreme Court to impose easements against the wishes of a landowner where this is found to be reasonably necessary for the effective use and development of neighbouring land. What is reasonably necessary is determined through a cost-benefit analysis based on the respective preferences of the putative dominant and servient owners. This article explores two ways in which the concepts of subjectivity (judgments based on the actual views of a particular subject) and objectivity (judgments based on an assessment of external objects) are represented in this calculus. Firstly, the article examines whether the preferences of the putative dominant and servient owners are assessed on a subjective or objective basis: does the court respect what people do want or what they should want? Secondly, to what extent does the court cede authority over the cost-benefit analysis to councils (as the relevant subject with planning powers), rather than retaining the role (as the finder of objective fact) for itself?
ANZSRC / FoR Code