Living in proximity to others will require a degree of tolerance to allow for peaceful co-existence, but in the recent case of Au v Berlach [2022] NSWSC 81, the Plaintiff brought an action against the Defendants seeking declarations about an Easement on their adjoining properties. The properties in question were located on the Central Coast, and one of them would be landlocked if it wasn’t for the right of way (the Easement) which passed over part of the neighboring property. 

The Plaintiff sought orders that the defendants were not entitled to operate leaf blowers on the Easement, not entitled to park or stop vehicles on the Easement and that the defendants could not breach the boundaries of the Easement by interfering with the plants, animals, or anything else on the plaintiff’s property. 

The Court declined to make any of the declarations or injunctions sought by the Plaintiff because that would not reflect the terms of the Easement that had previously been registered, especially as the easement was the sole means of access to the defendant’s property. 

By cross-claim, the Defendants sought orders to stop the plaintiff’s interference with their rights under the Easement, such as removal of certain signage, CCTV cameras, and fencing. This relief was granted by the Court as it breached the effective terms of the Easement. This case demonstrates that parties should always be aware of potential cross claims that can be brought against them when they bring an action in court. 

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