Written by In the recent case of Au v Berlach [2022] NSWSC 81, the NSW Supreme Court was asked to make a number of declarations and injunctions limiting the defendant’s use of an easement over the plaintiff’s property in the hinterland of the Central Coast. By cross-summons, the defendants sought orders to stop the plaintiff from interfering with the defendant’s rights under the easement.
The defendants owned property to the rear of the plaintiff’s property. Their property could not be accessed but for the easement, which granted the defendants vehicular and pedestrian access and became registered in 1993 under Section 88B of the Conveyancing Act 1919 (NSW).
The dispute arose due to different views about the breadth of rights conferred by the easement. The plaintiffs sought a declaration that any pruning of foliage on the property was only legal if done precisely within the boundaries of the easement and only if reasonably required for use of the easement as a right of way. The plaintiffs also sought a declaration that the defendants have no right to enter the easement to perform routine maintenance on the driveway or to operate leaf blowers.
By cross-summons, the defendants sought an injunction to restrain the plaintiff from interfering with the defendants’ use and enjoyment of the easement and ordered for the removal of the 17 CCTV cameras and other surveillance devices to monitor their use of the easement.
The Court found that the terms of the easement should be construed in the widest possible terms in favour of the defendants, as the broad expression of “for all purposes” in Section 88B of the Conveyancing Act 1919 (NSW) should be interpreted as encompassing all ends sought to be achieved by utilising the easement in accordance with its terms. The Court noted that good pruning practice may inevitably require some incidental breach of the bounds and precision was not practical or expected. It was held that the entitlement to prune and use a leaf blower to keep the easement appealing and well-kept was an incident of the ancillary right to use, maintain and repair the easement. Therefore, the Court refused to grant the declarations and injunctions sought by the plaintiff.
The cross-claim relating to CCTV cameras was upheld and the Court ordered for the removal of some of the CCTV cameras. Although it was reasonable for the plaintiffs to install some CCTV for security purposes, the extent of the CCTV cameras installed was designed to “snoop” and caused distress to the defendants. This was a substantial and unreasonable interference with the defendants’ right to enjoyment. This case demonstrates that excessive monitoring over an easement by using surveillance devices may give rise to an action in nuisance.