This question arises more often than one might think. Two examples in our experience spring to mind. The first was a case where we acted for the person with the benefit of the right of way whose child was disabled and often needed urgent medical attention at all times of the day and night because of life threatening seizures. The owner of the land subject to the right of way, wanted to erect a gate at the beginning of the driveway to keep his dog from straying onto the street.
The second was a case where we acted for the owner of the land which was the subject of the right of carriageway in circumstances where our client had built part of his garage over a significant part of the right of way.
The Gate Case
The rights of a landowner which has the benefit of a right of way are to enjoy reasonable use of the right of way. What is reasonable use is determined according to the words used in the document creating the right of way. Those words are construed in the light of the surrounding circumstances at the date the right of way was granted. In other words, the type of use that would have been contemplated at that date.
However, the law also recognises that the owner of the land over which a right of way is granted, is still the owner of that land and can continue to use it and treat it as their own land provided they do not obstruct reasonable use of the right of way. Therefore any obstruction of the right of way must be material and substantial before the owner of the right of way can object.
Assessment of an obstruction involves a two-step process;
Firstly, deciding what was the reasonable use of the right of way which was contemplated at the date the right of way was created.
Secondly if such a use was contemplated at the date of the grant, does the obstruction or proposed obstruction amount to a material and substantial obstruction. Gates are not normally regarded as being a substantial obstruction of a right of way. Even if the gates are locked, the obstruction will not be regarded as material and substantial if a key or other means of opening the gate is provided to the landowner having the benefit of the right of way. This is because the law tries to balance the right of the landowner against the right of the land benefited by the right of way.
Our argument in this situation was that at the date of the grant in 2003 the parties would have had within their contemplation use of the right of carriageway by or for a disabled or seriously ill persons. We also argued that if this was so, then in our client’s particular circumstances, an obstruction such as a gate which could materially and substantially hinder urgent medical assistance, such as ambulances late at night, was an impermissible obstruction.
The final outcome was that the owner who had already installed the gate, agreed to keep the gate permanently open.
The Garage Case
This case did not end so amicably. Our client had built his garage on his own land however that part of his land was subject to a right of carriageway in favour of the neighbour. The neighbour had obtained approval from the council for a strata development comprising 4 units and claimed that the garage unreasonably impeded access to and from his proposed development. He commenced proceedings in the Supreme Court of NSW seeking removal of the garage from the right of carriageway. The neighbour claimed that his proposed use was not greater than that which was contemplated at the date the right of carriageway was granted and that our client’s encroachment was material and substantial in terms of its effect upon his proposed development. However, the encroachment onto the right of carriageway was at a wide section in the right of carriageway, so that vehicles could still use the driveway to and from the neighbour’s property. Expert evidence was provided to the court on behalf of our client that removalist’s vans and other vehicles could still gain access to the neighbour’s property and turn around within the neighbour’s own land, even taking into account the increased usage which would result from the proposed strata development. On the basis of the principles set out above the court found that our client’s garage would not unreasonably impede the proposed use of the right of carriageway by the neighbour’s new development and refused to order removal of the garage. For further reading the case reference is https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/1997/374.html