When you have to go through your neighbour’s property to reach your own property, you need the neighbour’s permission to do so. When this involves the use of a driveway to get to your house, for example in the case of a battle-axe block, these days you would normally be using a right of way that is registered on both property titles.

Such rights of way are a form of “easement”, which is an ancient legal concept from English law. There are recorded cases involving easement disputes going back hundreds of years. A right of way is just one kind of easement, which permit someone to limited rights over land, but not to possession of it.

In a recent Supreme Court of NSW case, the court was called on to sort out a disagreement about the use of a right of way over one landowner’s property that benefitted his neighbour’s property, and what restrictions could be imposed on its use. The case illustrates how a fundamental misunderstanding of the property rights of a neighbour who has the use of the right of way can lead to expensive and unnecessary litigation.

Understanding a bit about easements

The courts often look at cases about with easements including a right of way. The land over which the right of way easement passes is called the “servient tenement” and the land having the benefit of it is called the “dominant tenement”. 

However, the owner of the land through which it passes can sometimes feel like it is they who should be “dominant” and that those who use their land should be “servient”. It’s their land after all, so shouldn’t they have the right to control how it is used?

Conversely, sometimes those with the right to use the right of way can forget that the land actually belongs to someone else and that they don’t have the right to possess the land or use it however they wish. Their rights are limited by the terms on which the easement was granted.

This means there needs to be proper consideration by the owner of both the dominant and servient tenements to the rights of the other in relation to use of the right of way. For example, the landowner (i.e. of the servient tenement) cannot obstruct the right of way by putting a gate on it that only they can lock and unlock. Nor can they build over it or otherwise prevent it being used for access to the dominant tenement. 

The dominant tenement owner also can’t do things within the easement that are inconsistent with or prohibited by the easement terms. For example, the right to “pass or repass” along the right of way does not mean it can be used as a parking area.

Each owner must exercise their respective rights so as not to unreasonably interfere with the rights of the other.

The need for give and take

The presiding judge in the case of Au v Berlach [2022] NSWSC 81, Kunc J, lamented the determination of the landowner to interfere in and not recognise the rights of his neighbour to use the right of way connecting the adjoining neighbour’s property to the main road. His Honour began his judgment with these wise words:

Most Australians live in proximity to their neighbours. That proximity will require, from time to time, a degree of give and take, tolerance and common sense to ensure peaceful co-existence. When those qualities are absent, disputes between neighbours can quickly grow out of all proportion. This case is an unfortunate example of that phenomenon.

Disputes between neighbours often flare up over what can seem like petty problems. It can be hard for some neighbours to keep their cool in the face of perceived interference and provocative actions from another neighbour. When it comes to use of a right of way, this reality is unfortunately all too common. Common sense is often in short supply when such disputes flare up.

What the case was about

The land in this case is located in the fertile rural hinterland of the NSW Central Coast near the town of Matcham. The plaintiff (Dr Au) owned land that has an easement granting a right of way to the property to the rear owned by the defendants (the Berlachs). The right of way was the Berlachs’ sole means of access to the nearby main road. They would have been landlocked if they did not have the use of the right of way over Dr Au’s land.

The easement granting the right of way was registered on the title to both properties in these terms:

[R]ight of way or use or passage at all times and for all purposes to the benefit of the proprietor for the time being of [the Berlach property] … and their servants, aids and workmen with or without vehicles or animals …

The laneway that served as the right of way is bordered by many trees and other vegetation and Dr Au had erected a variety of fencing, signage, cameras, bollards and flags along its length.

Dr Au asked the court for various restrictive declarations and injunctions including one that sought to prevent the Berlachs from entering the easement to perform routine maintenance on the driveway.

The Berlachs cross-claimed seeking orders designed to stop what they saw as Dr Au’s interference with their rights under the easement, including seeking the removal of certain signage, CCTV cameras (of which Dr Au had erected 17 along the laneway) and other items that they said were erected in a way that interfered with their rights and breached relevant planning regulations.

The end result was that the Berlachs were successful in their cross-claim, but Dr Au failed in his claim. 

In the judgment of Kunc J, the sensible give-and-take, tolerance and common sense necessary for neighbourly co-existence was strikingly absent from the approach adopted by Dr Au throughout the case, including an unsuccessful mediation. Kunc J described Dr Au as having an “idée fixe” (i.e. a fixation of mind resistant to any modification) in this regard that he maintained despite having the benefit of legal advice and indications given by the judge himself during the course of the hearing.

Kunc J stated that the origin of the dispute was Dr Au’s “extraordinarily restrictive view of the rights conferred on the Berlachs” by the terms of the easement (which are noted above).

Dr Au had asked the court to declare (in summary) that the Berlachs could:

  • only prune vegetation wholly within the laneway (i.e. not beyond the edge of the easement site);
  • not enter the laneway to perform routine maintenance or use leafblowers;
  • only use professional gardeners for pruning or trimming vegetation or using leafblowers (no more than twice a week); and
  • not stop or park vehicles in the laneway, except at the end near the Berlach property.

Dr Au also asked the court for an injunction to prevent the Berlachs from “breaching the boundaries of the easement” for any reason and from ever using leaf blowers or interfering with the plants, animals or anything else on Dr Au’s property. He also raised objections to the Berlach’s children riding their bikes in the laneway.

The Court found that:

  • the Berlachs’ case relied on properly interpretating the express and implied ancillary rights of the Berlachs under the terms of the easement, whereas Dr Au’s case was more of an appeal to emotional or psychological matters of little relevance to the legal issues;
  • the Berlachs’ approach to the case was to be preferred to that of Dr Au;
  • the easement terms permitting owners of the “dominant tenement” to use the right of way “at all times and for all purposes” were drawn as widely as possible in favour of the Berlachs’ property;
  • the restrictions sought by Dr Au did not reflect the relatively well settled rights and obligations of the Berlachs under the terms of the easement properly construed;
  • although Dr Au did have rights as owner of the land comprising the “servient tenement”, the easement terms gave the Berlachs’ property “the benefit of the widest possible property rights”, particularly since the easement site gives them the sole means of access from the public road to their property; and
  • Dr Au’s claim was therefore misconceived and he was not entitled to any of the relief he sought.

The Court noted it was relevant to consider the physical characteristics of the easement and the fact that it was the Berlachs’ only lawful means of access to and from the public road, serving as their driveway. The easement terms were accordingly to be given the widest possible meaning so that the Berlachs were allowed to maintain it as their driveway to the extent that this did not interfere with Dr Au’s reasonable use of and access to his property.

The Court also found in favour of the Berlachs, holding that:

  • Dr Au had unreasonably interfered with their rights to use the easement by installing security cameras along the length of the laneway so as to basically spy on the Berlachs use of it;
  • the Berlachs’ right to repair and maintain the easement permitted them to carry out routine maintenance by pruning and clearing vegetation such as overhanging or outgrowing tree branches; 
  • the standard of precision in pruning vegetation along the site boundary only required what was reasonable, practicable and achievable rather than avoiding cutting back even a millimetre further than the vertical boundary of the easement;
  • the Berlachs’ use of leaf blowers was permitted and governed by Regulation 51 of the Protection of the Environment Operations (Noise Control) Regulation 2017, under which leaf blowers can be used between 7am and 8 pm on weekdays and between 8 am and 8pm on weekends and public holidays; and
  • parking or stopping of vehicles in the laneway was a reasonable use permitted by the easement terms, provided it:
    • was necessary for any purpose to the benefit of the Berlachs (including people visiting or making deliveries to or otherwise performing services on the Berlach property or the easement site); and
    • did not interfere unreasonably with Dr Au’s enjoyment of his rights (e.g. by obstructing his access to his property).


The lessons to be learned from cases such as Au v Berlach include the following:

  1. The respective rights and obligations under the easement are to be found in the proper reading and interpretation of the terms of the easement, rather than by looking at emotional or psychological matters of little relevance to the legal issues or by taking an unreasonable and restrictive approach.
  2. A right of way drawn widely to permit the owner to pass through and use it at all times and for all purposes will permit reasonable repair and maintenance, pruning of vegetation, permitting some stopping or parking of vehicles where reasonably necessary. 
  3. The respective landowners must always exercise their respective rights, so they don’t unreasonably interfere with each other’s rights. If a “servient tenement” owner installs things like “spy cameras”, signs and bollards and oppressively or aggressively seeks to control the use of the easement by the “dominant tenement” owner, this will unreasonably interfere with that owner’s rights and could lead to the grant of an injunction to prevent such measures being taken.
  4. Adjoining owners who disagree about the use of a right of way easement need to seek and take heed of legal advice with a view to resolving matters in a common sense manner without engaging in expensive, time-consuming and stressful litigation.
  5. Adjoining landowners, when dealing with an easement granting a right of way, should always approach a dispute about it with a degree of give and take, tolerance and common sense to ensure peaceful co-existence.

How Craddock Murray Neumann can help you

If you are in a disagreement with a neighbour about the use of a right of way on your land or over neighbouring land, Craddock Murray Neumann Lawyers can help you to understand what you or your neighbour can and can’t do with it.

Our team of experienced is available to assist with this and any other enquiries you may have in relation to these questions, or any other property matters.

Do you still have questions?

Property owners sharing land with a neighbour for use of an easement granting a right of way to one neighbour over the land of the other neighbour need to take care to avoid unnecessary disagreement about how it can be used and maintained. To avoid disputes getting out of hand and requiring expensive litigation, neighbours should always ask a lawyer for advice about what they can and can’t do with the right of way.

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