The High Court has determined that the whole of a right of way easement must be kept clear, even if it is not currently used for access to a property.

This case involved a long-standing dispute over a shared driveway. The driveway provided access to numerous properties (which would have otherwise been landlocked) and was shared by the owners of these properties. However, the driveway was only 3 metres wide, and the right of way easement was 6.2 metres wide.

One neighbour, who was a party to the right of way easement, undertook renovations which protruded onto the easement area, such as installing drains and retaining walls. Although these renovations did not protrude onto the driveway itself, or impede movement up or down it, a second neighbour, who lived at the property at the end of the driveway, asked for these renovations to be removed. The first neighbour refused.

At arbitration, it was held that the structures did not impede the use of the driveway and therefore complied with the rights conferred under the easement. This was overturned by the High Court.

There were two issues before the High Court. The first was the scope of the resident’s rights under the right of way easement, and the second was whether the structures “substantially interfered with the easement”.

If a substantial interference was found, the Court had to find against the first neighbour, who submitted that the structures had to impede the “use and enjoyment” of the driveway itself in order to interfere with the easement rights. They argued that the right did not extend to any area covered by the easement, but only the driveway.

The Court held that the first neighbour’s renovations unlawfully infringed the right of way easement. The rights conferred by the easement related to the entire area of the right of way, not just the driveway. The Court found that the structures clearly, and substantially, interfered with the right of way easement as the renovations materially obstructed the easement area. It was irrelevant that the driveway itself was not obstructed.

The Court overturned the decision made in arbitration, and held that the rights conferred by the easement had been substantially interfered with.

If you are unsure of your rights and responsibilities in relation to a property or easement matter, it pays to seek advice from a professional with knowledge in the area.


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Alan Knowsley and Hunter Flanagan-Connors