The recent case of Sheppard v Smith [2021] NSWSC 1207considered whether an easement could be extinguished. The parties to the dispute were two couples owning adjoining terrace houses in Sydney. The easement, created in 1885, covered a one-metre wide strip extending around two sides of the plaintiff’s house and originally provided a passageway leading from the street to the rear of the defendants house. 

It is pictured in the image below: 

The Plaintiff’s claimed under s 89(1) of the Real Property Act 1900 (NSW) that, (a) the right of way was obsolete (b) that the easement was abandoned and (c) that extinguishment of the easement would not substantially injure the defendants. 

The evidence showed that the easement was originally granted for the removal of ‘nightsoil’ in 1885 before the suburb of Birchgrove was sewered. As the decades went on the laneway fell into disuse and new fences, hedges, raised garden beds and backyard extensions covered parts of the former laneway. 

In determining whether the easement was obsolete, the Court had regard to the terms of the right, rather than the way that it had been exercised in the past. The fact that the easement required expenditure to make it readily trafficable did not mean that it was useless. The defendants had expressed a wish to use the right of way and it was capable of being restored to its former condition as a rear access laneway. It was thereby not obsolete. Additionally, extinguishment would ‘substantially injure’ the defendants because they expressed a desire to use it, and the plaintiffs did not lead sufficient evidence to challenge this. 

Ultimately, the plaintiff’s claim to have the easement extinguished failed.

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