Posted on February 23, 2022 by Stuart Simington and James Fan

Interference with the rights conferred under a right of way

A recent decision of Kunc J in the Supreme Court is a timely reminder of the nature of the rights conferred under a right of way.

In Au v Berlach, the Court was asked by the Plaintiff to make a number of declarations and injunctions limiting the defendant’s use of a right of way (Easement) over the Plaintiff’s property .

Background

The Plaintiff, Dr Au, owned property in the hinterland of the Central Coast with frontage to a public road. The Defendants, Mr and Mrs Berlach, owned property to the rear of the Plaintiff’s and their property couldn’t be accessed but for the Easement, which gave the Defendants’ property vehicular and pedestrian access to a public road.

The Easement was created by an historic subdivision by instrument under s 88B of the Conveyancing Act 1919 registered 15 February 1993 as follows:

“Right of way shown on the plan being 3.575 metres wide so shown on the plan and following the western boundary of [the Plaintiff’s property] as shown on the abovementioned plan being a right of way or use or passage at all times and for all purposes for the benefit of the proprietor for the time being of [the Defendants’ property], his heirs, executors, administrators and assigns and their servants, aides and workmen with or without vehicles or animals and is hereby declared that the said reserved right of way is appurtenant to the lot described as [the Defendants’ property].”

The orders sought by the Plaintiff included:

  • A declaration that the boundaries of the Easement cannot lawfully be crossed by the Defendants and their associates and agents. Any pruning of foliage on the property is only legal if done precisely within the boundaries and only if reasonably required for use of the Easement as a right of way
  • A declaration that the Defendants have no right to enter the Easement to perform routine maintenance on the driveway.
  • That the Defendants must never, for any reason, breach the boundaries of the Easement and must never interfere with the plants, animals or anything else on the Plaintiff’s property.
  • That the Defendants must not, personally, operate leaf blowers on the Plaintiff’s property.

The judgment noted there was a great deal of evidence as to the conduct of the Defendant which was said to be not authorised by the Easement. However, this was not ultimately determinative of the matter. The issue for the Court was to determine the nature and scope of the Easement and whether the orders sought by the Plaintiff would infringe upon the rights of the Defendant under the easement. 

The Plaintiff installed a number of signs near the Easement including one stating “Main Residence” with an arrow pointing to the right (to his house) and another stating “Private Property. No Trespassing. Trespassers will be prosecuted.” A number of arrows and the street number of the Plaintiff’s property were also spray pained on the asphalt driveway on the Easement. Additionally, four posts containing 17 CCTV cameras overlooking the Easement were installed by the Plaintiff.

The Defendants’ cross-claimed and sought orders that signage and CCTV cameras installed by the Plaintiff be removed. 

Decision

The Court stated at the outset of its reasoning process that the Easement was drawn in the widest possible terms in favour of the Defendants. The Court also considered that the wide scope of the Easement was confirmed when it was understood that it represented the only lawful means of access (vehicular, pedestrian or otherwise) from the Defendants’ property to the public road. For all intents and purposes, the Easement was the Defendants’ driveway and they were entitled to use and maintain it.

However, the Plaintiff also had certain rights relating to the Easement. This included three points of access to the Plaintiff’s property from the Easement and the Defendants would not be permitted to do anything on the Easement that would prevent access to the Plaintiff’s property. Therefore, if either party wished to carry out routine maintenance within the Easement, they would need to do everything they could reasonably do to ensure that it was done quickly and with the least amount of inconvenience.

The Court recited authorities that confirm the rights to carry out pruning to vegetation that interferes with the the use of an easement. Further the Court considered that good pruning practice may inevitably require some incidental breach of the bounds of the Easement and that laser like precision is not practical nor expected. 

For those reasons the Court declined to make any orders or declarations limiting the Defendants’ ability to carry out maintenance or pruning. 

Limitations sought by the Plaintiff on maintenance by the use of machinery were also declined by the Court as there was regulatory prohibitions such as Protection of the Environment Operations (Noise Control) Regulation 2017.

The Defendants’ cross claim seeking to have signage removed was successful in that it was confusing and had the effect of deterring people from entering the Defendants’ property. This was contrary to the Plaintiff’s obligation not to interfere with rights conferred under the Easement. 

The cross-claim relating to CCTV cameras was upheld in part as the Court found that the removal of most of the CCTV cameras would be justified. Whilst it would be reasonable to install some CCTV for security purposes, the extent of the CCTV cameras installed by the Plaintiff caused distress to the users of the Easement, and were therefore a substantial and unreasonable interference with the Defendants’ right to enjoyment of the Easement. 

Salient Reminders

In summarising, his Honour referred to a helpful summary of the obligations of owners regarding easements in the Court of Appeal’s decision in Hare v van Brugge (2013) 84 NSWLR 41 where Barrett JA said at [25]:

… Each of them – the servient owner and the dominant owner – must exercise a degree of restraint in relation to an easement site. Neither may exercise his or her rights (the rights arising from the easement, in the case of the dominant owner, and the rights incidental to ownership of the burdened fee simple, in the case of the servient owner) in a way that interferes unreasonably with the enjoyment of the other’s rights.

Accordingly, there are some salient reminders as to the rights and obligations relating to an easement:

  • A servient owner (being the owner of the lot burdened by the easement) must not cause unreasonable interference with the rights of the dominant owner (being the party with the benefit of the easement) by deterring the dominant owner and their agents from using the right of way; 
  • A dominant owner is permitted to undertake maintenance within the right of way as an ancillary right arising from the easement. However, the dominant owner may only carry out maintenance that is reasonably necessary and do so without causing unreasonable interference or infringe upon the servient owner’s rights.

You can read the decision of Supreme Court here.

If you have any questions about this blog please contact Stuart Simington on 8235 9704 or James Fan on 8235 9706.