Interfering with rights of access

A balancing act where reasonableness must prevail

The NSW Supreme Court recently heard two cases relating to rights of carriage way and rights of access, and the activities that may be carried out by the parties benefiting from or burdened by these easements.

In both cases, importance was placed on ensuring that:

• the owner of the land burdened by these rights (the servient tenement owner; henceforth “the burdened owner”) does not substantially interfere with a benefitted party’s enjoyment of them

• the party benefitting from these rights (a prescribed authority or the dominant tenement owner; henceforth “the benefitted owner”) does not engage in activities that unreasonably interfere with the servient tenement owner’s use of the land.

What constitutes substantial interference with enjoyment of an easement?

In Condran v Collis [2024] the Court focused on whether the actions of the burdened owner amounted to wrongful interference with the benefitted owner’s right of access to such a degree as to render the burdened owner liable for the tort of nuisance.

The case visited principles from previous caselaw. Wrongfully interfering with an easement, including by obstructing use of a right of way, may be actionable in nuisance depending on the degree of obstruction. However, for a private right of way, the obstruction must be a ‘real and substantial interference’.

As a starting point, it is not unreasonable for a benefitted owner to experience slight inconveniences when accessing the right of way. An interference is not considered real and substantial if access can be practically and substantially exercised as conveniently after the obstruction as before the obstruction occurred.

Interference need not be physical to be considered substantial. It can include acts that create danger, impede the benefitted owner’s freedom to decide to exercise the right of access or impose a risk or cost on the benefitted owner for exercising their right of access.

In Condran v Collis, the placement of CCTV surveillance equipment along the right of way and the installation of gates were not determined to be real and substantive interferences. However, the Court ruled that the following actions of the burdened owner did constitute real and substantial interference:

• vulgar abuse and aggressive conduct towards the benefitted owners when using the right of access

• dumping tyre wrecks and other waste near the right of access

• regularly tightening the chains on the gates across the right of access over a prolonged period

• imposing a risk or cost on the benefitted owner for exercising their right of access

• planting trees near or within the right of access.

Responding to substantial interference from burdened owners

Wrongful interference with a right of access may be addressed by removing the obstruction or by action in court.

If a benefitted owner decides to remove the nuisance, they must act reasonably in doing so. Permitted actions include entering the land to remove the obstruction.

In practice, however, courts have discouraged such attempts, which risk breaches of the peace. A better approach is to give the burdened owner notice of an intention to remove the nuisance.

The Court maintained this line in FitzGerald v Foxes Lane (NSW) Pty Ltd [2024], stating that while an easement grants the benefitted owner a right to repair and make improvements, exercising those rights must be exercised consistently with the benefitted owner’s reasonable use and enjoyment of the easement, and must not hinder the burdened owner’s land. Any such action must also be reasonably necessary for the benefitted owner to enjoy use of the easement. Interfering with rights of access

Reasonably necessary for an enjoyment of an easement

A benefitted owner’s right to repair and make improvements is confined to what is reasonably necessary for their enjoyment of the grant of easement. What is reasonably necessary is assessed in light of all the circumstances.

In FitzGerald v Foxes Lane (NSW) Pty Ltd [2024], the benefitted owner received a right of carriageway. To improve the right of carriage, the benefitted owner proposed to build an unsealed crowned road 100-300mm high with table drains and to then undertake periodic grading activities on the site.

The Court considered the following when determining whether this was reasonably necessary:

• physical characteristics of the burdened owner’s land and benefitted owner’s land

• the historical and current condition of the right of carriageway and whether 4-wheel drive vehicles could pass through the right of carriageway in its existing condition

• whether the works proposed by the benefitted owner could be accurately assessed

• whether, once the proposed works have been completed, the right of carriageway would interfere with the burdened owner’s use and enjoyment of their land.

Interference with a burdened owner's use of land

The Court placed significant weight on ensuring that the benefitted owner’s work on the burdened owner’s land caused no unreasonable interference with the land or undue inconvenience to the burdened owner.

The benefitted owner’s right of way does not entitle them to have the entire strip of land in the right of way cleared of any obstruction. The burdened owner remains the owner of the land, and may use it in any way and maintain on it any structure so long as this does not create a real substantial interference with the enjoyment of the right of way. If sufficient space is left free for passage without any real substantial interference with the right to pass and re-pass, the benefitted owner cannot insist on more.

If a benefitted owner does anything that constitutes an excessive use of a site of easement, that may amount to a nuisance and a trespass on the burdened owner’s land. If use of burdened owner’s land is carried out unreasonably and causes unreasonable damage to the land, it may be restrained as a nuisance.

Key takeaways

These cases highlight the balancing exercise the Court undertakes between giving benefitted owners sufficient power to enjoy their right of way without materially affecting the burdened owner’s right to use their own land.

Interference by either party with the other’s enjoyment of their rights may be actionable in nuisance. The Court focuses on the importance of “keeping the peace” between parties and exercising reasonableness when enjoying their rights in order to maintain harmony.

Authors: Pree Silva Das & Melissa Potter

Read Council Connect April 2025 issue

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.