The recent case of Dudley v Ainsworth [2021] NSWSC 1478considered whether the fence and works erected on an easement amounted to a substantial interference with the plaintiff’s reasonable use of the easement.  

The plaintiff had a 49m long easement over the defendant’s land which was noted on the titles of the two properties and used as a driveway to access a public road.

The cause of the dispute was that the defendants installed a fence along the easement with only a 7.4 m gap to permit the plaintiff to access his land. This was problematic for the plaintiff as they owned numerous vehicles including an 11m long bus. 

The Plaintiff sought injunctive relief against the Defendants on the basis that the works interfered with their reasonable user rights, by denying sufficient points of access through the gates. 

The Court held that the respondents were allowed to fence the property along the boundary in easement area but not to deny points of access at southern end of the easement. The planting of shrubs and trees at these points amounted to a real substantial interference with the enjoyment of the easement and constituted an actionable nuisance. The applicants were thus entitled to an injunction to remedy the continuation of the interference. 

This case is a reminder that any construction upon an easement will have to comply with the terms of the easement. 

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