Australia: Coveting my neighbours access – the driveway, the easement and the battle of the battle-axe block – which case won?

Last Updated: 20 December 2017
Article by Mark Warren

The Facts

Land subdivided to create block with street frontage and battle-axe block

The defendants owned a block of land in Thornleigh, on Sydney's upper north shore. In 1987, they sold the front section of their block of land to the plaintiff, leaving themselves the battle-axe block at the rear of the land. Their driveway runs down the side of the plaintiff's property from the street. It is their only means of accessing their property.

Plaintiff asks neighbours for permission to use driveway to carry out building works

In 1988 the plaintiff asked if he could use the defendants' driveway to access his back yard to carry out building works.

The defendants granted temporary permission to do so. Nothing was ever put in writing. The plaintiff then removed a section of the dividing fence so that he could access his back yard from the defendants' driveway.

Renovations continued on and off for the next few years and included the plaintiff constructing a garage at the front of his property with drive-through access to his back yard. He installed a roller door on the rear of the garage and planned to build car ramps down to his back yard.

The plaintiff also stored about 8,000 surplus bricks from the building works in his back yard and used the defendants' driveway to shift these by wheelbarrow.

Plaintiff constructs back yard pool, removing vehicular access to back yard via garage

In 2001 the plaintiff asked again if he could use the defendants' driveway to access his back yard to build a pool. Once again, the defendants agreed to temporary access while the work was completed.

The plaintiff told the court that he positioned his pool directly behind the attached garage on the understanding that he could gain access to the site from the defendants' driveway. This meant he could no longer modify his garage to create vehicular access to the rear yard.

Once the pool was completed in 2001, there were no further renovations until about 2010. The plaintiff continued to use the defendants' driveway to access his back yard to store building materials and his box trailer and to park his collection of cars.

Plaintiff seeks driveway access to build two-storey extension to house

In 2010 the plaintiff began a two-storey extension on his house and sought permission again from the defendants to use their driveway to gain access to his back yard, including trucks delivering building materials.

The defendants once again agreed to grant temporary permission and stipulated that they be informed when deliveries would occur and that the size of the trucks coming down their driveway should be limited.

Defendants seek to restore dividing fence while plaintiff seeks easement

The renovations continued for another two years. In 2013 or so the defendants approached the plaintiff and requested that a new dividing fence be built along the full length of the boundary between the two properties.

Around the same time the plaintiff raised the prospect of the defendants granting him an easement over their driveway and engaged a valuer to assess the fair market value of the right of carriageway.

The defendants resisted the easement proposal and again pressed for the completion of the boundary fence between the plaintiff's property and their driveway.

In the meantime, the plaintiff and his family continued to use the defendants' driveway. At various stages over the next few years the plaintiff had up to four or five cars parked in his back yard. His son also from time to time ran a car parts business from the back yard, with customers accessing the yard down the driveway. The plaintiff's son also parked his car in the yard on a regular basis.

Frustrated by the defendants' resistance to his proposal regarding the driveway, in September 2015 the plaintiff commenced proceedings by way of summons in the Supreme Court seeking an equitable easement over his neighbours' driveway – that is, an easement based on longstanding use and agreement between the parties – and in the alternative, an order under section 88K of the Conveyancing Act 1919 (NSW) imposing an easement on the driveway.

case a - The case for the plaintiff

case b - The case for the defendants

  • I have an equitable right to use the driveway. I was given permanent permission to use it in either 1988 or 2001 and I've continued to use the driveway ever since (27+ years).
  • I relied upon this permanent permission to locate the pool where I did and to carry out my other building works.
  • The defendants acquiesced because they allowed me continued use of the driveway over a long period and let me take steps such as locating my pool where I did, based upon the belief that I had permanent access.
  • If the court does not find that I have an equitable easement, I am asking the court to impose an easement over the driveway under section 88K of the Conveyancing Act, as the easement is "reasonably necessary for the effective use or development of other land (my property) that will have the benefit of the easement".
  • Without continuous use of my neighbours' driveway, I will not have effective use of my property because I won't have vehicular access to the rear of my property to access my shed or park my box trailer, or pedestrian access to read gas or water meters.
  • We never granted our neighbour permanent permission to use our driveway. It was only ever temporary permission so that he could gain access to his backyard for the duration of the building projects.
  • Nor did we ever agree to an easement or discuss with our neighbour the nature and extent of any rights that would attach to such an easement.
  • We are concerned for our safety, given that cars and strangers are using our driveway at all hours.
  • Our neighbour can still access his back yard through his house and down the side of his property without using our driveway. Indeed, very few properties in the area have vehicle access to their back yards.
  • Our neighbour blocked vehicle access to his back yard through the attached garage by building the pool where he did. No-one forced him to do this and he didn't discuss it with us.
  • There is plenty of parking for our neighbour's cars in his garage and driveway and outside his house on the street.
  • We no longer give permission to our neighbour to use our driveway and we would like the dividing fence along the driveway restored.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the plaintiff
Vote case B – the case for the defendants

Mark Warren
Litigation and dispute resolution
Stacks Collins Thompson

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