Alleged abandonment and obsolescence of a dunny lane easement
Aug 31, 2022The Supreme Court Court of Appeal has handed down its decision in relation to an L-shaped easement, granting one property owner (#8) a right of way over the rear and side of the neighbouring property (#6) to enable access to the street. This right of way in Birchgrove (inner Sydney) was initially established in 1885 for purposes including the facilitation of the removal of “night soil” – affectionately referred to as a “dunny lane”. Sewers were introduced in 1908, the right of way ceased to be used, and fences to the rear boundary were built between the properties.
The #6 neighbour commenced proceedings seeking an order under section 89(1) of the Conveyancing Act 1919 (NSW) (“Power of Court to modify or extinguish easements”) that the right of way be extinguished on 3 grounds:
- That #8, by their “acts or omissions”, may reasonably be considered to have abandoned the easement;
- That the easement ought to be deemed obsolete – or that its continuation would impede the reasonable user of the land (ie #6) without securing practical benefit to the persons entitled to the easement (ie #8); and
- That the proposed extinguishment would not substantially injure the persons entitled to the easement (ie #8).
A further argument was that the Court should be satisfied that the easement has not been used for at least 20 years, and therefore it should be abandoned.
At first instance, the primary judge dismissed the proceedings in favour of #8 and the continuation of the easement, by finding:
- #8 manifested an intention not to abandon the easement in 2010 when indefeasible title was granted (that is, it was brought under the Real Property Act 1900 from being a limited title property once a plan of delimitation was lodged) and the easement was noted on the new title;
- there was no intention shown by the prior owners of #8 to abandon the right of way;
- the right of way was not obsolete; and
- extinguishing the easement would substantially injure #8.
The judgment can be read here (Sheppard v Smith [2021] NSWSC 1207).
#8 appealed to the Court of Appeal (Sheppard v Smith [2022] NSWCA 167]. In considering the grounds of appeal, the Court noted:
- taking steps to record the existence of a right of way onto a certificate of title is a public form of affirmation of the existence of the right of way;
- despite the fact that #8 did not use the right of way and there were features built on the property that impeded access to the right of way, those features were not permanent;
- non-use of the right of way is not sufficient to manifest an intention to abandon the right of way. There must be “a firm intention” of abandonment. It is not to be “lightly inferred”;
- considering the terms of the easement, there was nothing that warranted a finding that the purpose of the right of way was restricted, noting that there had been no change in the “character of the neighbourhood”. The easement was not limited to the removal of night soil, therefore its continued existence secured a practical benefit to #8.
Despite the Court’s finding in favour of the dominant tenement seeking to assert its continued right to access that strip of land, it is strongly recommended that if you are aware of a right attached to your land for its benefit, then you should take steps to exercise that right so that there is not an argument that it has been abandoned.
Contact the Shire Legal team if you have any questions.
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