The gate remains closed! The Court of Appeal upholds a win for common sense in an easement dispute.

Bailiwick Legal has won again in the long running dispute over neighbourhood trespass and the true purpose of an Easement

The trial at first instance

In March 2019, the Supreme Court found that the terms of an easement used by a neighbour to access their dominant tenement (neighbouring land) and then to travel to on to other parts of her farm (with separate titles), was a misuse of the easement and was a trespass on our client’s land.

The full article regarding the trial at first instance can be read here.

The appeal

The neighbour appealed this decision to the Court of Appeal, challenging the Supreme Court’s conclusions and contending that the Court of Appeal should find that she is allowed to access the rest of her farm via the easement and through the dominant tenement and that she did not trespass on our client’s land.

Our client’s position was unchanged, that the deed of easement did not provide for the dominant tenement to be a thoroughfare to other parts of the neighbour’s farm land (such land having separate titles).

The decision

Earlier this month, the Court of Appeal handed down a unanimous decision, holding that on its proper construction, the deed of easement does not provide for access to other parts of the neighbouring land owner’s farm beyond the dominant tenement. The Court of Appeal further held that the neighbouring land owner’s use of the easement to access those other parts of her farm was a trespass on our client’s land.

This decision affirms the long-established authority that the terms of an easement typically provide access to the dominant tenement only, and do not provide passage to other areas of land adjoining the dominant tenement, even where that adjoining land is owned by the same person.

Bailiwick Legal were proud to be instructed on this matter and are extremely pleased to obtain a positive result for our client once again.

 

By Danielle Williams (Solicitor)

If you would like further information in relation to the above or have a legal issue you would like to discuss, please contact us on (08) 9321 5451 or by email at danielle@bailiwicklegal.com.au.

To learn more about Easements please view our information article regarding the topic here.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

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