Written by The Supreme Court of New South Wales has recently considered when long-term use of a private access road will be sufficient to establish an easement by prescription, and in particular whether that use occurred with the consent of the landowner.
In Maloney v Putu Pty Ltd [2023] NSWSC 1148, the plaintiff sought recognition of a prescriptive easement over an access road that provided the only practical vehicular access to his property, Portland Head Farm at Ebenezer. The road had been used continuously since at least 1963 by the plaintiff, his family members, employees, contractors, suppliers, emergency services and other visitors.
A prescriptive easement may arise where a right has been exercised openly, continuously and ‘as of right’ for at least 20 years. A claim will fail if the use occurred by force, in secret, or with the permission of the owner of the burdened land, as use by permission is treated as a licence and not the exercise of a legal right.
The defendant relied on conversations dating back to 1978 and 1979 in which the then owner of the land allegedly gave permission for the plaintiff’s father to continue using the road. However, the Court found that the evidence was more consistent with neighbourly cooperation and tolerance than the grant of a revocable licence. The Court emphasised that the distinction between consent and mere acquiescence is critical. A landowner’s decision not to object to a particular use, particularly as a matter of neighbourly accommodation, does not necessarily prevent a prescriptive right from arising.
Several factors supported the conclusion that the road had been used ‘as of right’. The plaintiff consistently asserted an entitlement to use the road, the roadway was maintained at the plaintiff’s expense, and the route was used by a wide range of people without restriction. The Court also noted that successive owners were aware of the ongoing use but made no meaningful attempt to limit or control it.
The Court ultimately held that a prescriptive easement had been established over the road, confirming that long-standing, open and uninterrupted use may mature into a legally enforceable right where the evidence demonstrates that the right was exercised as of right rather than by permission.