Written by The New South Wales Court of Appeal has recently considered when a registered right of way may be extinguished on the basis that it has been abandoned or has become obsolete. In Sheppard v Smith [2022] NSWCA 167, neighbouring landowners sought orders under section 89 of the Conveyancing Act 1919 (NSW) to remove a right of way dating back to 1885 that had not been used for many years and was affected by various physical obstructions.
Section 89 gives the Court a broad discretion to modify or extinguish easements where appropriate. The applicants contended that the easement should be removed because it had been abandoned, had become obsolete and no longer provided any practical benefit.
The Court rejected those arguments and declined to extinguish the easement. In doing so, it confirmed that abandonment requires more than a lengthy period of non-use. While non-use is a relevant consideration, the critical question is whether the owner benefiting from the easement has demonstrated a clear intention to permanently relinquish the right. The Court emphasised that abandonment is not lightly inferred.
A significant factor was that the owners of the benefited land had taken active steps to ensure the easement was recorded on their certificate of title. The Court regarded this as a public affirmation of their intention to preserve the right of way. Although fences, garden beds and other structures had interfered with access over time, those features were not considered sufficiently permanent or persuasive to establish abandonment, particularly when viewed against the continued recognition of the easement on title.
The decision highlights that prolonged non-use alone will rarely justify the extinguishment of an easement. Before exercising its powers under section 89 of the Act, the Court will consider the surrounding circumstances, including the conduct of the parties, the continuing utility of the easement and whether its removal would cause substantial prejudice to the party entitled to its benefit.