Ancillary rights

The starting point is that an easement carries with it all ancillary rights reasonably necessary for the exercise and enjoyment of the easement: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [9]. The key here is in the language – reasonably necessary. What is “reasonably necessary”?

The ancillary right claimed must be “reasonably necessary”, not “absolutely necessary”. To be “reasonably necessary” the claimed right must be more than merely reasonable or convenient: Moncrieff v Jamieson [2007] 1 WLR 2620; Westfield Management Pty Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528.

In most cases, the owner of land benefited by a right of way over their neighbour’s land, can enter onto that land to make the right of way trafficable, for example by laying down gravel or repairing an old driveway.

There are many other examples of ancillary rights to do work on burdened land. Some examples are:

1. A right of pedestrian traffic to the door of a house includes the right to lay a flagstone: Gerard v Cooke (1806) 2 Bos & P (NR) 109; 127 ER 565.
2.  A right of carriageway includes the right to pave so much of its length as is reasonably necessary for its enjoyment, which may or may not include its entire length: Clifford v Dove (2003) 11 BPR 21,149 at 21,156, Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111 at [21].
3. A right of way through a basement may also include the reasonably necessary right to illuminate the right of way: Owners of Strata Plan No 48754 v Anderson (1999) 9 BPR 17,119.
4. A right of pedestrian traffic may include the right to install stairs where the path is steep or slippery: Hanny v Lewis (1998) 9 BPR 16,205 at 16,208.

Carrying out works on burdened land

Where a right of way carries an ancillary right for the owner of the benefited land to pave the right of way or construct a driveway, the choice of surface material lies with the owner of the benefited land: Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111 at [21]. Specifically, in that case it was held that the owner of the benefited land was entitled to insist on asphalt rather than turf.

The owner of the benefited land must still obtain any necessary approvals and permits, for example a tree permit to remove a tree or development approval from the local council. Where an ancillary right enables the owner of the benefited land to carry out work on the burdened land, the owner of the burdened land must co-operate in any necessary development application for permission to carry out the work: Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 at [9], Berryman v Sonnenschein [2008] NSWSC 213 at [16]. 

In most cases, the owner of the benefited land should give notice of its intention to enter onto the land and perform works. This should be in writing, set out the general time and date the works will be carried out and the nature of the works proposed: Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 at [96]-[98].

The owner of the burdened land may want to provide input, for example the timing of the works and the types of materials used. However, where the owner of the benefited land reasonably proposes making an easement suitable for use by one means, and the owner of the burdened land reasonably proposes another means, the owner of the benefited land’s proposal prevails, because the owner of the burdened land is not entitled to prevent the owner of the benefited land from validly exercising their rights under the easement: Burke v Frasers Lorne Pty Ltd (2008) 14 BPR 26,111 at [21].

Give notice of intention and discuss with your neighbour

You should always try and discuss the works you propose to undertake on burdened land with your neighbour and seek to arrive at an outcome both parties can live with. This does not always work. In our experience many difficult neighbours seek to prevent access to their land, request unreasonable conditions for access and actively construct fences and other impediments on the burdened land to frustrate use of the easement. 

You should understand your rights clearly and obtain competent legal advice before engaging in negotiations around these issues and before carrying out works on burdened land.