Case

Which case won?

casea
The case for the owners of the benefitted 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.
caseb
The case for the owners of the burdened land
  • 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
Case A Case B

Case A won. You were right!

How people voted
case a86%
case b14%

Expert commentary on the court's decision

“The reasons given for wanting to use the right of carriageway were deemed to be genuine and realistically capable of achievement.”
Court refuses to extinguish right of carriageway

In the case Castle v Achdjian [2022] NSWSC 1340, the Supreme Court found that the right of carriageway had not been abandoned.  

It agreed with the position of the owners of the benefitted land, Jessica and Andrew Castle, upholding their right to use the easement as a thoroughfare to the street.  

The court ordered the owners of the burdened land, Lena and Vatche Achdjian, to remove the fences blocking the right of carriageway, so that the Castles could use it.

Practical obstacles to achieving vehicular access

While the original purpose of the right of carriageway was to facilitate vehicular access to the dominant tenement via the servient tenement, the court observed that the terms of the easement also allowed for non-vehicular access. 

The court took into account the evidence that it would not be possible to construct a driveway that complies with the applicable design and planning standards within the right of carriageway, and that the council was unlikely to approve the construction of such a driveway; nor was it likely to approve the removal of the large pine tree which had been planted on it.  

These factors meant that vehicular access was unlikely to be achieved.

Pedestrian access via right of carriageway

However, there were no such impediments to achieving pedestrian access. 

The court noted that the timber fence that blocked the entry onto right of carriageway could be quite easily and inexpensively removed or modified to allow entry into the right of carriageway.  

The court concluded that if the fences obstructing the right of carriageway were removed or modified to incorporate gates and some light vegetation was cleared, the easement could be conveniently used for pedestrian access. 

In the opinion of the court, the Castles had given genuine reasons for wanting to use the right of carriageway – namely, walking their children to the local primary school and walking to the park and the shops. This use was deemed to be realistically capable of achievement. 

The victory for the Castles was twofold, as the court not only ordered the Achdjians to remove the fences they had built and allow the Castles access to the right of carriageway: it also ordered them to pay the Castles’ legal costs.

Property buyers should investigate easements thoroughly

Anyone considering buying property would do well to remember that easements continue through time, binding future property owners.  

All property buyers should investigate easements thoroughly as part of their due diligence. 

It is also advisable for neighbours to maintain open lines of communication regarding property rights, if at all possible. 

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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