A recent decision of the Supreme Court of New South Wales highlighted the rights of persons who are entitled to the benefit of easements for right of way.
In this particular case, Property A was entitled to an easement for a right of way over Property B.
The owner of Property B had sought to restrict the rights of Property A to the use of the right of way.
Some of the examples of restrictions were to endeavour to have the owners of Property A restricted from using blowers to clear the right of way, trimming of foliage hanging over the right of way, to monitor the activities of the owners of Property A by the use of CCTV and the right of the owners of Property A from having access to part of Property B for the purpose of carrying out maintenance or repair to the right of way.
Unfortunately, a dispute between Property A and Property B led to proceedings in the Supreme Court of New South Wales where the owners of Property B sought court orders to restrain the owners of Property A from exercising the right of way except under certain strict conditions.
The Court held that the right of way granted was of the widest possible terms.
Drawing on previous cases, the Court emphasised that Property A had a number of “ancillary” rights which were able to be exercised as a result of the existence of the right of way. Some of those ancillary rights included:
- The right, but only when necessary and in a reasonable manner, to have access to Property B for the purposes of maintaining and repairing the right of way.
- The right to have access to Property B for the purpose of trimming or retaining foliage including trees extending from Property B onto the right of way.
- The right to use equipment such as leaf blowers to clean the right of way (however, such use could be subject to Regulation 51 of the Protection of the Environment Operations (Noise Control) Regulations 2017 which restricts the times in which power tools are able to be used.
In addition, the Court ordered that the owner of Property B was required to remove certain CCTV which the owner of Property B had admitted was erected to monitor the actions of the owners of Property A.
In its decision, the Court indicated that because of the proximity of properties in Australia, neighbours should be able to expect from time to time and exercise tolerance and common-sense to ensure the peaceful coexistence of each neighbour. Unfortunately, when those qualities are absent disputes between neighbours can quickly grow out of proportion.
Caution needs to be utilised when considering this issue as each case will depend upon the particular wording of the right of way or right of carriageway.
However, as can be appreciated, the right of way or right of carriageway does import certain additional rights other than the simple right to utilise the area of land as a right of way or carriageway.
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