The Facts

What is a right of carriageway?

A right of carriageway is a form of easement which gives someone the right to access their property through the property of another person.

It is a full and free right for a person in whose favour the easement is created, and everyone authorised by that person, to go, pass and repass through the property that the right of carriageway is on, at all times and for all purposes, with or without animals or vehicles.

Burdened land adjacent to benefitted land

A right of carriageway was noted on the titles of two adjoining properties in Hornsby.

The dominant tenement (the "benefitted land", which enjoys the use of the easement on someone else's property) backed onto the rear of the servient tenement (the "burdened land", which has the easement upon it for others to use).

The owners of the servient tenement had lived on the property since early 2000, while the owners of the dominant tenement acquired their property in 2020 from previous owners, who had lived there since 1974.

Creation of right of carriageway

The right of carriageway was created in 1967. It was 10'0" wide and ran along the eastern boundary of the burdened land. For many years, the right of carriageway had been blocked by fences at each end and by a large pine tree which had been planted at one end.

No driveway or pathway had ever been constructed on the right of carriageway and it had not been used since at least 2005.

Contradictory claims regarding use of right of carriageway

The owners of the burdened land claimed that since they moved into their property in December 1999, the right of carriageway had never been used.

By law, an easement is deemed to be abandoned if it has not been used for 20 years. The owners of the burdened land argued that the right of carriageway had been abandoned by the previous owners of the benefitted land and for that reason, the easement should be extinguished.

However, there was evidence that up until 2005, the children of the former owners of the benefitted land had used the right of carriageway three or four times per week, to access a swimming pool and to carry out pamphlet and paper delivery runs to houses in the neighbouring streets.

In addition, when the benefitted property was sold to its current owners in 2020, it was marketed as having access to the street via the right of carriageway.

Irreconcilable positions lead to legal action

The owners of the benefitted land commenced legal action, seeking to uphold their right to pedestrian access via the right of carriageway and seeking the have the fences built on it removed.

In response, the neighbours counterclaimed, seeking to extinguish the right of carriageway on the basis that it had fallen into obsolescence.

It was up to the court to decide whether to uphold or extinguish the easement.

CASE A

The case for the owners of the benefitted land

CASE B

The case for the owners of the burdened land

The right of carriageway is plainly set out on the title of our property, which we bought on the understanding that it exists. It is part of the property that we paid for.
The right of carriageway is valuable feature, giving us access to the nearby street and enhancing our property's value and utility.
The previous owners of our property used the right of carriageway until 2005, so there is no legal reason to extinguish it. It isn't just a forgotten detail.
The former owners have rejected the suggestion that the right of carriageway was abandoned in 2010. In fact, in 2010 they explicitly rejected two approaches by the owners of the burdened land to cancel the right of carriageway.
We would like to use the right of carriageway to walk our children to the local primary school, to the park and to the nearby shops.
Our legal entitlement should not be obstructed by our neighbours' baseless objections. The court should uphold the right of carriageway and direct our neighbours to take down the fences they have built across it.

We have never seen anyone using the right of carriageway since we moved to this property at the end of 1999. In effect it was abandoned decades ago. Surely a right unused is a right forfeited.
The right of carriageway has never been used for vehicular access.
It would be impossible to construct a driveway within the carriageway to comply with applicable design and planning standards. Council is not likely to approve such a driveway, so achieving vehicular access is not feasible.
There is also a large pine tree growing on the easement, now the subject of a tree preservation order. Council is unlikely to approve the removal of the tree, so again, vehicular access could not be achieved.
The continued existence of the right of carriageway impedes us without securing any practical benefit for anyone else.
Extinguishing the right of carriageway will not substantially injure the current owners of the benefitted land. The court should decide in our favour and cancel this abandoned easement.

So, which case won?

Cast your judgment below to find out

Sayesha Bali
Disputes and litigation
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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