Rights of way. What can you do on them?

It is common for subdivisions to give access to rear sections by a right of way easement, over land owned by another person – or sometimes several others in sequence. Trouble can arise when the “owner” of the underlying land wants to do something on part of the right of way. Or a neighbour (or their contractors) uses it to park or store stuff.

A recent High Court decision explores what you can and can’t do on easements. The right of way easement was 6.2m wide with a sealed driveway along it – but only 3m wide. The sealed strip was ample for the rear section owners to drive up and down. So the underlying owner used some of the excess width for their retaining walls and pillars. Not in a minor way – it was claimed they would cost over $1.2m to remove! These additions did not impede the use of the sealed driveway, but were within the surveyed easement area, on each side of the seal. The neighbours complained.

An experienced arbitrator (a retired High Court judge) looked at the various regulations and statutory provisions governing easements, and decided that only the sealed driveway had to be kept clear. The  new additions did not unreasonably get in the way of the access.

Normally an arbitrator’s award is final. But here the other owners sought leave to appeal the arbitrator’s decision for error of law. The High Court decision is only on the leave application, not the appeal itself (and there might be a different outcome if the appeal actually proceeds). But the High Court had a good look at the law on the way through, disagreed with the arbitrator and gave leave to appeal. 

The big finding is that, even if part of a right of way is not currently used for access, it may be in the future so the whole easement area must be kept clear. This accords with most earlier cases where unused parts of a legal easement had been required to be kept clear, and, for example,  walls and gates had to be removed even if they were not in the way of other users.
It is sometimes said that a nuisance only occurs if there is a “substantial interference” with the easement use. This would make it a question of degree, so that  insignificant interferences may have to be tolerated. But even that approach may be largely removed by a recent update of the Land Transfer Regulations in 2018. That provides:

“A right of way includes the right to have the easement facility kept clear at all times of obstructions (whether caused by parked vehicles, deposit of minerals, or unreasonable impediment) to the use and enjoyment of the easement facility”.

The only ‘wiggle room’ in this regulation is the reference to an “unreasonable impediment”. But the regulation prohibits dumping of stuff and parking “at all times”, so the wiggle room may well only apply to very temporary and minor interferences.

The bottom line is that it is not acceptable to interfere with an accessway by any means other than, perhaps momentary parking to drop stuff or people off. Frequent guest parking, storing building materials or dumping pruning or other debris could result an angry neighbour and an adverse court decision.

Latest Update: 6 December 2021