Right Of Carriageway In NSW

Right Of Carriageway In NSW

Right Of Carriageway NSW

Find out more about your entitlements regarding the right of way carriageway in NSW, who is responsible for maintenance and what happens when a dispute occurs. A right of carriageway permits an authorised person to enter someone else’s property to gain access to their land. Sharing a driveway or portion of land with your neighbour is not always straightforward. Let’s take a closer look.

What Is An Easement?

An easement affects a defined area of your property which is noted on your land title. A property owner may be burdened or benefited by an easement, depending on whether you are the dominant or servient tenement.

An easement will remain with the property until the registration is extinguished or cancelled. 

The registration of an easement will show on public record, which is particularly beneficial when purchasing a property. It provides the new owner information about the easement, who it benefits and how it will impact the use of the land.

There are several different easements, and all are used for various purposes, such as an easement for services used to drain water and sewerage or access electricity and telephone lines. Sometimes an easement burdens more than one property, for example, when electricity lines run over adjoining properties. The easement benefits the electrical company instead of the landowners. In this case, the electricity company has the right to enter the land to maintain and repair its equipment.

A right of carriageway easement permits neighbours to use a driveway or road connected to your property.

What Is A Right Of Carriageway?

A right of carriageway authorises a person to drive their vehicle or walk over a specified part of another person’s property. The carriageway is a positive easement that legally allows access to that portion of servient land. The owner of the lot is not permitted to restrict entry or build a structure on or over the easement land, as the registered easement provides authority to be granted access. 

When a right of way is granted, the proprietor still owns the land and is entitled to use it as required, as long as they don’t obstruct the easement.

The person who owns the land where the easement will be created is called a servient tenement, and the landowner who benefits is a dominant tenement. The particulars of the right of way agreement will be noted on both land titles.

Essentially a carriageway right means the land owner must always allow the person authorised to pass over that portion of your title with the right of way easement. 

What Does The Right Of Way Allow?

The law permits the owner of the benefited land to pass across the burdened lot only to enter their property and only within the easement site.

A right of way also grants any person authorised to:

  • Travel over a section of another person’s property to enter your land
  • Pass and repass the land subject to the burden at anytime
  • Travel on foot or in a vehicle 
  • Cross the property for any reason
  • With or without vehicles or animals
  • Load, unload, pick up passengers or goods
  • Carry out work such as repairing or maintaining wires, cables, equipment etc
  • Any work done must cause as minor inconvenience as practicable
  • Any damage caused must be repaired

Right Of Carriageway Parking

Easements are complex and are governed by the courts using common law and precedents from case law and, in some cases, judicial interpretation.

While a right of carriageway in New South Wales will grant the right to access a driveway or road that does not belong to you, it does not permit vehicles to park on the easement site. The only parking which is permitted is to allow other persons to pass. 

Sometimes, a court may decide otherwise, such as when parking bays are mapped out on the easement plan and accessibility is not hindered.

Creating An Easement

Before an easement can be created, both the dominant and servient tenement must agree to the terms and conditions of the agreement. There are several options available to create an easement on your property.

  1. An easement can be created through section 88B of the Conveyancing Act 1919, which must include lodgement of plan detailing the easement’s specifics.
  2. A transfer granting right form can also be used to create an easement, available from the New South Wales Land and Property Information website. A written agreement between both parties is required. Also, details stating the compensation to be paid to the burdened servient tenement.
  3. The Supreme court also has the power to modify or cancel easements as long as specific requirements are satisfied.

To cancel an easement registered on a title, the applicant must abide by the terms in the Real Property Act and apply to the Registrar General.

Who Maintains An Easement?

A common issue with shared driveways in NSW is, “who is responsible for the maintenance?”

Depending on the circumstances and how the easement was created, it is generally the responsibility of the dominant tenement to maintain the easement site in the same way they would manage the rest of the attached land. There is generally no obligation for the servient tenement to maintain the right of carriageway. 

The owner of the dominant tenement must ensure that the easement remains usable, this may include undertaking necessary maintenance to ensure it is suitable for use.

Right Of Way Interference

The owner of a servient tenement must ensure that they do not interfere with the easement land’s right. 

For example, if a shed or structure was built over the easement and obstructed entry, the dominant tenement is entitled to pull down the structure to gain access to its property. Likewise, if a gate or fence was erected and locked, restricting access, the other person is permitted to remove part of the fence and cut the lock so they can enter their land.

The law states that the land owner benefited by the easement has the right to abate the interference as long as no injury to the public is caused. 

In some cases, the dispute may escalate, and it may be necessary to commence legal proceedings. The servient tenement may take the matter to court and sue for damages or seek an injunction. 

It is recommended that before starting legal proceedings, individuals should seek advice from a lawyer who specialises in property law.

Summary

There are several different easements, and all are used for various purposes, such as an easement for services; telephone, electricity, water etc. A right of carriageway easement permits neighbours to use a driveway or road connected to their property.

A right of carriageway is a positive easement that legally allows access to a portion of land owned by another person. 

The lot owner is not permitted to restrict entry or build a structure on or over the burdened land, as the registered easement provides access authority. If a shed or structure was constructed over the easement and obstructed accessibility, the dominant tenement is entitled to pull down the structure to gain entry to their property. 

Property owners may be burdened or benefited by an easement, depending on whether you are the dominant or servient tenement. 

An easement will remain with the property until the registration is extinguished or cancelled. The registration of an easement will show on public record, which is particularly beneficial when purchasing a property. It allows the new owner information about the easement, who it benefits and how it will impact the use of the land.

Easements are complex and are governed by the courts using common law and precedents from case law. In some cases, the dispute may escalate, and it may be necessary to commence legal proceedings. It is recommended that before starting legal proceedings, individuals should seek advice from a lawyer who specialises in property law.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Right of Carriageway or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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