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ARTICLE · 14 MAY 2025

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Interfering with rights of access

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What constitutes substantial interference with enjoyment of an easement?

AustraliaReal Estate and Construction
Melissa Potter
Melissa Potter
Pree Silva Das
Pree Silva Das
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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.

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