Posted on October 19, 2023 by Megan Hawley and Samantha Hainke
Easements by prescription: What Constitutes Permission by a Servient Landowner?
In the recent NSW Supreme Court decision of Maloney v Putu Pty Ltd  NSWSC 1148, the Court granted an easement by prescription over the defendant’s land to formalise the plaintiff’s right to use an access road which the plaintiff, his father and their invitees had used for more than twenty years as the only method of vehicular access to his land.
The primary issue before the Court was the question of whether the plaintiff’s use of the access road was with the permission of the registered proprietor of the burdened land.
The case provides a helpful reminder of the principles the Court will consider when determining whether to grant an easement by prescription.
The plaintiff was the registered proprietor of land known as ‘Portland Head Farm’ in Ebenezer, NSW. The only vehicular access the plaintiff had to Portland Head Farm was through an access road which crossed over land identified as 5/622478 (Lot 5), 118/1151762 (Lot 118) and 119/151819 (Lot 119).
Lot 5 was owned by the Hawkesbury City Council who raised no objections to the plaintiff’s use of the access road. The plaintiff was unable to locate the registered proprietors of Lot 118 (which was a small piece of land running parallel with the boundary of Lot 119). Lot 119 was previously owned by the first defendant, Putu Pty Ltd who sold Lot 119 to El Rihani Family Pty Limited who was the third defendant in the proceedings.
The plaintiff sought a declaration of entitlement to a prescriptive easement over Lots 118 and 119 in order to formalise his access to Portland Head Farm.
Easements by Prescription
To create an easement by prescription, the person claiming the easement must establish that ‘the enjoyment has been ‘as of right’ for an uninterrupted period of at least twenty years‘.
An easement by prescription cannot be established where the use has been by force, secretly, surreptitiously or with the permission of the servient owner.
In determining whether the use has been with permission of the owner, the critical question for the Court (raised by Peden J at  citing White JA in Arcidiacono v The Owners – Strata Plan No 17719; Arcidiacono v The Owners – Strata Plan No 61233  NSWCA 269) is ‘whether the servient owner has consented to the use or merely tolerated it‘. Toleration as a matter of ‘good neighbourliness’ is not inconsistent with an easement by prescription.
The relevant factors for the Court when determining whether use has been ‘by permission’ or as conduct ‘as of right’ were established by Kirby at 627-9 in the Court of Appeal’s decision of Dobbie v Davidson (1991) 23 NSWLR 625 (Dobbie) which include:
(i) the time during which the conduct has been peacefully followed;
(ii) the persistence of the conduct, despite supervening sale and the acquisition of new owners by the dominant and servient tenements;
(iii) the unlimited variety of the persons who have utilised the alleged right-of-way;
(iv) the absence of physical impediments or obstructions to that use; and
(v) the knowledge of the use by the owners of the servient tenement yet their failure to attempt to forbit, limit or control the use of the right-of-way by the owners of the dominant tenement and those having dealings with them.
Issues in this case
The issues of the case were summarised by Peden J as follows:
- whether permission was in fact expressly granted to the plaintiff to use the access road by reason of a conversation that transpired between the parties in 1978; and
- if express permission was not granted, whether the use of the access road was a ‘neighbourly indulgence’, which, over time, came to bear the stamp of legal right.
Express permission must be determined objectively, rather than through reliance on the subjective intentions of the parties.
Based on the evidence submitted to the Court, Peden J concluded that the use was more consistent with use as of right and was not with the permission of the servient owner, based on the following:
- the plaintiff spoke to third parties regarding his ‘right to use the road’, which demonstrated the plantiff’s understanding that he had a legal entitlement to use the access road without permission;
- the access road had been used by a large number of people, including guests, farm managers, tradesmen, suppliers, livestock transportation and critical service providers including Integral Energy, ambulance, RFS and SES;
- the plaintiff instructed the farm managers to grade and maintain the road regularly;
- when the defendant first purchased Lot 119, she placed a gate over the entrance to the property on the access road. The plaintiff removed the gate, and the defendant’s never replaced it after conversations between the parties about the plaintiff’s the use of the access road. Peden J noted that an inference can be drawn that the defendant did not intend to prevent access, having heard the plaintiff assert his right to use the access way;
- the defendant’s language in her statement to her real-estate agent that ‘There’s a private road which runs through our property. The road is an access road and has always been used by the owners of Portland Head Farm‘ conveyed an entitlement to use as of right, rather than by permission; and
- an old map in evidence showed that an access road to Portland Head Farm existed from approximately 1803.
In having regard to the second issue before the Court, Peden J considered that the evidence given by the defendant in that she ‘agreed to [the plaintiff] using the Dirt Track as my husband and I were hardly going to be at the Property and I am a firm believer of helping out your neighbour… I was willing to allow [the plaintiff] to use it because we were new to the area and I did not want any trouble with my neighbours‘, could not be read as granting permission to use the access way because at no time did the defendant assert that she had any basis to prevent the plaintiff and his invitees using the access way, and that factually she never prevented the plaintiff from doing so. Despite using the word ‘permission’ in the witness box, the defendant’s evidence primarily concerned good neighbourliness (see paragraphs  and  of the judgment).
While Peden J considered it appropriate to make an order to grant an easement by prescription over Lot 119, Her Honour concluded that it was not appropriate to make an order affecting Lot 118 where the registered proprietors had not been joined as parties to the proceedings.
Whether the use of an access way has been ‘by permission’ is a question of fact which must be determined objectively. The Court will grant an easement by prescription where such a claim is consistent with use as of right as determined by the list of factors raised in Dobbie as supported by evidence.
While there may be evidence in a case to suggest that permission has been granted, that evidence must be scrutinised, as not taking action to stop the use, or even verbally acknowledging it can continue, may not constitute permission. The evidence needs to be considered in the context of the other evidence before the Court regarding the use across the uninterrupted period of at least twenty years.
The judgment in Maloney v Putu Pty Ltd  NSWSC 1148 can be accessed here.
If you have any questions in relation to this decision, please leave a comment below or contact Megan Hawley on 02 8235 9703