Posted on May 16, 2024 by Frances Tse and Liam Mulligan

REMINDER: When might interference with an easement be lawful?

Easements are interests in land that allow a person – usually the owner of specified land or a public authority – to use land which they do not own for a specific purpose such as access, drainage or water supply. Generally speaking, the owner of land that is subject to an easement must not interfere with the use of the easement by those entitled to its benefit. Such interference can give rise to an action in the tort of nuisance, for which damages can be awarded.

Cases involving interference with rights under an easement can be complex. This is particularly the case where disputes are protracted and where the easements involved create reciprocal rights and obligations amongst the owners of different parcels. A recent series of cases involving a very long-running and bitter dispute over an easement in south-west Sydney illustrates the complexity that can arise in such cases.

Breen v Clough series of cases

These cases involved the use of an inclinator by the owners of two adjoining properties, both of which fell steeply down from the street to waterfront land below (the evidence was that the properties had a fall of over 44m from the street). An easement which straddled both properties contained an inclinator, which was use for access to various parts of the properties, and conferred reciprocal right of access on both landowners.

The easement also imposed reciprocal obligations to ensure ‘proper maintenance repair and replacement of all improvements‘, to ‘comply with all laws and legal requirements‘, and to equally share the cost of works and services to the inclinator and related structures.

2017 Supreme Court proceedings

In 2017, the Supreme Court considered a then long-running dispute between the two landowners about the inclinator. WorkCover had issued notices to the landowners which required certain works to be carried out in order to use the inclinator.  The landowners could not reach agreement in respect of the works. One of the landowners proceeded with carrying out works on the inclinator and in doing so, prevented the other landowner from using the inclinator (through actions such as locking the electricity box, locking the control panel and locking of gates at the landings at street level).

The Supreme Court held that:

  • although such actions would normally constitute substantial interference, in the circumstances of this case, it was not so because the terms of the easement required both parties to ‘comply with all laws and legal requirements‘ in relation to the inclinator,
  • to the extent that the works and resulting prevention of use of the inclinator, were to comply with the WorkCover notices so as to allow the use of the inclinator, such interference was held not to be substantial interference,
  • in respect of other works which were not necessary to comply with the WorkCover notices and which had the effect of preventing any use of one of the landings to gain access to the inclinator, the Court found that those actions did amount to substantial interference.

2023 Supreme Court proceedings

The 2023 Supreme Court judgment considered various further disputes occurring between 2018 and 2021 in continuation of the long-running dispute. Two of the incidents complained of involved one landowner blocking the other landowner’s access to one of the inclinator landings by changing the locks to the gate and glueing shut one of the locks. It was also accepted that one landowner had attempted to deter the landowner from engaging a locksmith to enable access.

The Supreme Court considered that those actions likely arose out of the deteriorating relationship between the landowners, but there was no indication that the actions were contemplated or required under the terms of the easement. Accordingly, the Court held that the actions which prevented access to the inclinator amounted to substantial interference.

Nature and scope of rights granted by an easement

This series of cases highlights the fact that what may seem as obvious interference of an easement (such as the physical prevention of access) may be unlawful in some circumstances, but not unlawful in other circumstances.  For instance, if the interference arose out of the requirements of the terms of the easement, then it could be found to be lawful. We have also previously blogged about the concept of interference of easement rights here

Parties who are preparing terms of easement should ensure that they are worded carefully to clearly set out the scope and nature of rights granted so as to minimize the potential for dispute on whether rights have been unlawfully interfered with. The nature and scope of the rights that are granted under any easement will be determined by its terms. That is, the way in which the easement instrument is worded, having regard to the physical characteristics of the land, will be critical in determining the extent of rights and obligations under the instrument.

If you have any questions in relation to this post, please contact Frances Tse or Liam Mulligan.