In Fitzgerald v Foxes Lane (NSW) Pty Ltd [2024], the New South Wales Supreme Court addressed the tension between dominant and servient tenement owners of an easement, particularly focusing on damages arising from the interference with a right of carriageway (ROC).
The dominant tenement owner, Fitzgerald, was entitled to a ROC over a portion of land owned by Foxes Lane (NSW) Pty Ltd, a company engaged in a controlled traffic farming method. Fitzgerald argued that this farming method impeded his right to use the easement, leading to discomfort and erosion. He proposed constructing a road with table drains on the easement, which Foxes Lane resisted. The court questioned whether Fitzgerald had the right to carry out these proposed improvements, and whether Foxes Lane’s actions amounted to interference justifying damages. The first issue concerned whether the ROC included ancillary rights to make improvements, such as constructing a new road or drainage. The easement, governed by the Conveyancing Act 1919 (NSW), provided Fitzgerald the right to pass freely over the servient land. The court also held that while ancillary rights may exist for some modifications, they must not substantially interfere with the landowner’s use.
The second issue arose as to whether Foxes Lane’s actions—obstructing the easement—constituted a private nuisance. Interference with the easement could amount to a nuisance if it caused material and unreasonable harm to the dominant tenement owner’s use of the easement. The court concluded that Fitzgerald had suffered actual inconvenience due to the interference but found no justification for exemplary damages. Instead, Fitzgerald was awarded modest damages ($2,500) for the nuisance, and the easement was not extinguished. The court further ruled that future use of the easement should be governed by a clear set of terms to prevent further conflict. The decision reinforces the importance of respecting the terms of an easement while ensuring that any interference with its enjoyment is not unreasonable.