26 April 2023
#Property, Planning & Development
Rights of way create rights in the benefited land, or dominant tenement, by imposing correlative obligations upon the burdened land, or servient tenement. Most typically, rights of way allow the owners or occupiers of the benefited land to pass across the burdened land to access other land, such as a road.
When registered, the easement becomes indefeasible and a proprietary right passing with the land. But sometimes the continuance of a right of way, which may have fallen into disuse, seems unwarranted despite registration on title. When should a forgotten, or no longer necessary, easement continue restricting the burdened land, especially where the easement’s extinguishment or modification will allow greater use of the burdened land? We explain using a recent case.
Because registration creates the permanency of an indefeasible property right, simply not using an easement does not jeopardise the benefited party’s rights. Nothing is needed to renew or evidence the easement – the right (i.e. the easement) exists by registration.
However, most state parliaments have given their courts discretion to remove or modify registered easements, despite a benefited party’s objection. In NSW, section 89 of the Conveyancing Act 1919 provides that “the Court may … modify or wholly or partially extinguish the easement” if satisfied that:
Not surprisingly, courts are naturally cautious when considering removing or modifying registered land interests. The NSW legislation gives the court some guidance, providing that if the easement has not “been used for at least 20 years before the [court] application … is made”, the court may (but need not) “treat the easement as being abandoned”.
The recent Castle v Achdjian decision concerned an allegedly abandoned easement. Even though the court ultimately found that the easement was not abandoned, the case details the type of evidence needed to succeed in removing an easement and how counterfactuals as to future land uses may be relevant.
In 2020, the Castles acquired 20 Vista Close, Hornsby. The land sloped steeply down from Vista Close and due to the steepness and a batter, had no driveway. 20 Vista Close’s back fence adjoined 8 Marlee Street’s back fence. 8 Marlee Street itself sloped from its back fence down to Marlee Street, but at a much gentler gradient than 20 Vista Close. The Achdjians’ had lived at 8 Marlee since 2000.
Both lots were formed as part of a deposited plan registered in the 1960s. 8 Marlee Street was burdened by a right of way extending up its side to its back boundary with 20 Vista Close, being the benefited land, and potentially useable as a driveway from 20 Vista Close and out onto Marley Street. But a driveway was never constructed. Instead, the right of way contained established gardens, including a mature Norfolk pine, and was blocked by three fences – the dividing back fence, a fence separating 8 Marlee’s front and back yards, and 8 Marlee’s front fence. Part of a renovation also encroached onto the easement.
The Castles had renovation plans which included using the rights of way, but the Achdjians refused access and further refused to remove the obstructions. The Castles approached the court seeking orders obliging the Achdjians to remove the obstructions. For their part, the Achdjians contended the easement should be extinguished because of non-use. Further, the Norfolk pine was protected by a tree preservation order which practically restricted future use as a driveway. Finally, the Achdjians contended that engineering advances since the 1960, when the land was subdivided, meant that a driveway could be built giving direct access from the Castles’ land and onto Vista Close.
While not overly featured in the judgment, access into and out of 20 Vista Close via 8 Marlee Street provided better district access – Marlee Street joined a local arterial road.
20 Vista Close’s previous owners, the Ryans, had lived there since 1974 raising their children. Between the late 1980s to the early 2000s, the Ryan kids, up to a couple of times a week, jumped the back fence into the easement. Sometimes this was to play in 8 Marlee’s pool, sometimes as a shortcut to school, and sometimes to do a pamphlet run. These kids’ use of the easement, although they were not aware that they were using an easement (or what an easement even was), in fact provided evidence of its use. Any limits on a party’s ability to demonstrate an easement’s use by a person who, without knowing it, had the right to use the easement, was not explored.
In 2010, on the advice of an architect preparing plans to renovate 8 Marlee, the Achdjians and Ryans had some unsuccessful discussions about extinguishing the easement, including the Achdjians offering $5,000 for its removal. Mr Ryan explained that at some future date he intended to use the right of way. The renovations still went ahead.
In 2020, Mr Castle, before settling 20 Vista Close’s sale, asked the Ryans if they had ever used the right of way, to be told ‘no’. However, this answer was in the context of Mr and Mrs Ryan not using it, they were not speaking for their kids. The Castles’ conveyancer also recorded Mr Castle saying he’d soon need to also ask the local council if he could remove the Norfolk pine and build a driveway. This did not occur, but expert evidence suggested the approval was unlikely, given the tree preservation order.
The Achdjians contended the right of way should be removed, or modified to a footway, for four reasons:
Even if an easement could be used – say for foot traffic if not able to handle a car, an issue about whether the easement is obsolete or abandoned can arise.
‘Obsolescence’ includes where an easement’s object has become incapable of fulfilment or that the easement serves no present useful purpose. In this case, the right of way was not considered obsolete. Even if a driveway could be installed to allow car access to and from Vista Close, the easement was not only for vehicles, but had benefits for foot traffic. The easement’s purpose was to access Marlee Street. Given 20 Vista Close’s steep topography, such access had value.
As for 20 Vista Close abandoning the easement, the back fence was considered relevant. The back fence, even though likely in place for 50 plus years, did not evidence abandonment, but of an intention not to use the easement for a driveway, at least at the time the fence was built. The court observed that gates are not hard to place in fences, and even if the fence was originally evidence of no intention to use the easement for a driveway, this intention does not vouch for the future. Other evidence which may support abandonment, such as 20 Vista Close not complaining about 8 Marlee Street placing obstructions on the easement – and for that reason acquiescing in the abandoning of the easement, were not proved.
The Achdjians’ fall-back argument was then for a ‘partial abandonment’. That is, contending that the easement should now only be allowed to operate as a footway, and never as a driveway. This was rejected, with the court observing that a partial abandonment of use could not easily apply to rights of way. While rights of way may permit several modes of use – driving, trotting, walking, etc – these are all instances of the same use – actually travelling along, or traversing, the easement. The right to walk down the right of way is not independent from the right to drive down the easement. Because this is considered the same right, for an easement to be abandoned the right needs to be abandoned, as opposed to a particular mode of using the right.
The present ability to use the right of way for foot traffic also resulted in there being a practical benefit if the easement remained. This overcame the Achdjians’ argument that the easement gave the Castles no practical benefitwhile preventing the reasonable use of 8 Marlee. It also meant removing the easement would cause substantial injury to 20 Vista Close since 20 Vista Close would at least lose the ability to climb their fence and walk down the easement.
Given the court’s findings, the easement had been used within the previous 20 years, any advantage given by section 89(1A) and a court being allowed to treat the easement as abandoned after 20 years of non-use, did not arise. Still, section 89(1A) warrants further attention with the Court commenting on the section’s reference to a time period described as being “at least 20 years before the application … is made”. The reference to the ‘application’ was taken as meaning the date of filing the application, not the date of hearing.
Section 89(1A) potentially has one unusual consequence for the pre-litigation resolution of disputes. If a burdened party wishes to contend the benefited party has gone 20 years without use, the burdened party seems advantaged by immediately commencing a claim rather than first trying to resolve the issue via negotiation. This would be to secure benefits from section 89(1A). If pre-litigation discussions did occur, the benefited party will have the chance, before a claim is brought, to use the easement, opening to argument whether the easement had not been used for “at least 20 years before the application … is made”. The easement will have been used within 20 years of filing, even if the use occurred only a day or two before filing, and was only initiated because the benefited party learned a proceeding was likely.
Easements rarely become obsolete because indefeasible rights are not lightly taken away.
One potential example of obsolescence is if an easement can be shown as being created to overcome a specific problem affecting the benefited land, but over time that problem was resolved. Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd  NSWCA 28 gives an example. In this case, a lot of land did not have access to a particular road where such access was important to the benefited party’s business. The impediment was due to the land’s configuration and improvements, and the easement gave access to the road.
Time passed and the benefited lot was redeveloped. By then, road use in the area had changed. The easement no longer provided lawful access to the public road. Instead, the access needed for the business had to be via another road to which the benefited party had direct access. The burdened land party wanted the easement removed. This was a case of obsolescence in the sense that “the object of the covenant is now incapable of fulfilment or perhaps that it serves no present useful purpose”.
It will likely remain difficult to have a court by order remove rights of way from title. Compelling facts or unique situations will be necessary. The ability to extinguish or modify an easement is not without hope, but the legal basis for doing so is relatively rare and requires an almost compelling circumstance. Often negotiation is necessary.
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 Schedule 8B of the Conveyancing Act 1919 (NSW) employs the terms ‘rights’ and obligations’ in describing rights of way.
 See section 89(1)(a) of the Conveyancing Act 1919 (NSW). Examples in other jurisdictions include section 181 of the Property Law Act 1974 (Qld), section 129C of the Transfer of Land Act (in WA), and (quite different) section 73 of the Transfer of Land 1958 (Vic).
 See cases Sheppard v Smith  NSWCA 167; McWilliam v Hunter  NSWSC 342; Franciskovic v G & J Tenni Pty Ltd  QSC 215 (covenant extinguished); Double Bay Bowling Club v Council of the Municipality of Woollahra trading as Woollahra Municipal Council  NSWSC 1861(covenant extinguished).
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.