Which case won?

The case for the plaintiff
  • 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.
The case for the defendants
  • 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
Case A Case B

Case B won. You were right!

How people voted
case a24%
case b76%

Expert commentary on the court's decision

Mark Warren
Mark WarrenSolicitor
“The court found that the plaintiff had not shown that he had an equitable right over the defendants’ driveway, because he was never given permanent permission by the defendants to access their property.”
Court finds that plaintiff has no equitable right over his neighbours’ driveway

Declaration of interest: Stacks Collins Thompson acted in the case discussed below.

In the case Dietrich v Denning [2016] NSWSC 597, the court handed down judgment in favour of the defendants, the Dennings, finding that the plaintiff, Mr Dietrich, had not shown that he had an equitable right over the defendants’ driveway because he was never given permanent permission by the defendants to access their property.

Nor was there any representation made to Mr Dietrich that an easement would be granted, nor any discussion about what rights he could enjoy under the easement.

In regards to the defendants’ “acquiescence”, the court concluded that this could be “aptly described as the generous, or at least tolerant, behaviour of one neighbour to another”. In summary, the court said that this was not a case “of a landowner who, by their conduct, encourages a neighbouring landowner to believe the latter had or would acquire rights over the former’s land”.

The court also found Mr Dietrich’s avowed belief that he had permanent permission to use the driveway was inconsistent with the fact that he sought permission again prior to the 2010 renovations.

Power of court to create easements under section 88K of Conveyancing Act

The issue here for the court is whether the easement is “reasonably necessary” for the use of the plaintiff’s land. “Reasonably necessary” does not mean “absolutely necessary”. The court had to determine whether Mr Dietrich could still use his land without the easement.

The court found that other than being able to drive his cars into the back yard, Mr Dietrich could still access his yard through his house and down the side of his property. In other words, the property could still be used effectively without the easement. In regard to the cars, the court noted that very few houses in the area had vehicle access to their backyards. Such access is desirable or preferable, but falls short of necessity.

Right to control and fence the driveway

In considering “reasonable necessity”, the court has to take into consideration the burden the easement would place on the servient tenement. The driveway was the only means the Dennings had to access their property. Not being able to control the driveway, including the ability to fence it and place a gate across the entrance, would place a significant burden on them.

Another consideration was the increased safety hazard which arose with greater traffic, particularly where vehicles exited from the rear of Mr Dietrich’s property.

For all these reasons, Mr Dietrich failed and had to pay the Dennings’ costs. Interestingly, even if Mr Dietrich had won, he still would have had to pay his neighbours’ court costs, plus compensation for their lost rights.

This is because section 88 K(5) of the Conveyancing Act states that “the costs of the proceedings are payable by the applicant, subject to any order of the court to the contrary.”

Easements – an expensive business, even if you win!

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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