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.
Expert commentary on the court's decision
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!