When Neighbourhoods Collide – Principles of Reasonable Necessity When Seeking a s180 Easement
Reflections on Donskoi & Anor v Whitaker-Mead [2025] QSC 166
Author: Dane Thornburgh – Senior Associate Quinn Law Group
Recently, I had the opportunity to act as the instructing solicitor for the applicants on behalf of Quinn Law Group in the Supreme Court of Queensland decision of Donskoi & Anor v Whitaker-Mead [2025] QSC 166.
The judgment is an important reminder of the threshold that must be met before the Court will impose a statutory right of user over another person’s land under section 180 of the Property Law Act 1974 (Qld).
The Dispute
The applicants owned a residential property where, for many years, vehicles had accessed the rear garage by travelling over part of what was later identified as the neighbouring owner’s land.
Following redevelopment of the adjoining property, the respondent removed the encroaching driveway and constructed a new driveway and boundary fence, preventing vehicular access to the applicants’ rear garage.
The applicants sought the imposition of a statutory easement over a small portion of the respondent’s driveway, arguing that the easement was reasonably necessary to:
- regain vehicle access to the rear garage;
- store vehicles and trailers;
- facilitate deliveries of larger gas cylinders;
- improve loading and unloading of household goods; and
- restore a long-standing use of the property.
The Court’s Decision
Justice Copley accepted that the applicants had undoubtedly suffered inconvenience.
His Honour also accepted that rear vehicle access had existed for decades.
However, the central question was not whether the easement would be convenient or even highly desirable.
The real question was whether it was reasonably necessary for the effective use of the land.
The Court held it was not.
While recognising the applicants had lost significant convenience, the Court found:
- the property remained capable of effective residential use;
- alternative parking arrangements existed;
- the garage could still be accessed by foot;
- alternative gas supply arrangements had not been fully investigated; and
- granting a perpetual easement would impose a significant burden on the respondent’s proprietary rights.
The application was therefore dismissed.
The Importance of “Reasonable Necessity”
One of the most significant aspects of the decision is the Court’s discussion of what “reasonably necessary” actually means.
The judgment reinforces several established principles:
- reasonable necessity is assessed objectively;
- it is a significantly higher threshold than mere convenience;
- applicants must demonstrate something more than the preferred or easiest solution;
- the greater the interference with another person’s property rights, the stronger the evidence required to justify that interference.
As the authorities consistently recognise, courts do not readily interfere with private property rights.
Final Thoughts
For practitioners acting in statutory right of user applications, Donskoi serves as an important reminder that success depends not merely upon demonstrating hardship or inconvenience.
The real challenge as has always been the case, is proving that the proposed easement is genuinely reasonably necessary in the interests of the effective use of the land, while overcoming the Court’s understandable reluctance to interfere with another person’s proprietary rights.
The judgment will undoubtedly become an important reference for future applications brought under section 180 of the Property Law Act 1974 (Qld).
Dane Thornburgh – Senior Associate – Quinn Law Group
Donskoi & Anor v Whitaker-Mead [2025] QSC 166 (22 July 2025)
Dane Thornburgh appeared as the instructing solicitor for the applicants on behalf of Quinn Law Group. The decision provides useful guidance for practitioners and property owners alike on the evidence required to satisfy the statutory test.
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