The difficulty of extinguishing a right of way for non-use was recently demonstrated in the decision of Sheppard vs. Smith [2021] NSWSC 1207 (September 23, 2021), a decision of the Supreme Court of New South Wales (Parker J).


The story began in January 1883, when Miss Bridget Tubridy bought land in Frederick Street, Birchgrove (a suburb of downtown Sydney, next to Balmain). In true style like a 19e developer of the century, she paid £ 87 for the land, borrowed £ 400, built a pair of terraced houses (with a party wall between them), subdivided them and sold £ 350 each in October 1885. The terraces are narrow at two-story terraces with two bedrooms upstairs. Today, they are worth over $ 2 million each.

Birchgrove did not have a sewer at the time. The terraces at the back had “water toilets” (toilets or “dunnies”) from which the “night earth” was collected in sanitary bins with lids (“pots”). The night dirt collector (the “dunny man”) used a narrow passage (a “dunny lane”) to transport the full bin from the “dunny” to his “dunny cart” and took it to empty it.

A 3 foot 5 inch (1.045 meter) wide passage started from Ferdinand Street, along the side of number 6 at the back, when it took a right turn back from number 8 in the shape of a ” The reversed to give access to the outbuilding (see map below).

When Miss Bridget Tubridy sold no. 8, it granted an easement for the right of way over the passage to the buyer. When she sold no. 6, the passage was not included in the land sold. It remained his property as a separate piece of land.

A sewer line was laid under the passage in 1908, serving the terraces. From the evidence, the passage was probably not used as an access to no. 8 for many years, although there was a door on the street most of the time. In recent years, the owner of no. 6 had used the passage as an extension of their backyard and had installed raised beds and a pergola in the path of the passage.

These physical barriers meant that the owners of no. 8 did not have access to their backyard through the passage. They registered a demarcation plan in 2010, which registered a right of way over the passage, for the benefit of their property, reflecting the concession in 1885. Here is the plan with the passage highlighted in yellow:

When the owners of no. 6 purchased in 2011, they got an investigation report that showed the passage with raised garden beds built and a pergola on it. The report stated that “further investigation would be required to determine ownership” of the land indicated as a passage.

The owners of no. 6 repositioned the flower beds along the passage in 2014. They later closed a covered area across the passage, effectively integrating it into their room, without obtaining council approval.

In 2017, they owned the no. 6 made a primary application to acquire the title of the passage on the basis of the continued possession that they and their incumbent predecessors had enjoyed on the passage for many years, without reference to the right-of-way.

But when the title of passage was issued, a right of way easement was noted in favor of the owners of no. 8 (Smith – the defendants), because this easement was described in the boundary plan registered in 2010.

Law and consideration

The owners of no. 6 (Sheppard – Plaintiffs) applied to the Court for an order extinguishing the easement of right of way.

They invoked the three grounds for termination set out in Article 89 (1) of the 1919 Surrender Act (NSW) (the “CA”):

  1. the right of way is obsolete, or unreasonably obstructs the use of the land by the plaintiffs without guaranteeing a practical advantage to the defendants; Where
  2. bondage was abandoned; Where
  3. the extinction of servitude does not seriously hurt the defendants.

The main reason was that the bondage had been abandoned.

Justice Parker referred to Australia’s leading authority on easement abandonment – Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 (High Court of Australia).

The facts were that 36 Wolseley Road, owner of the land at this Point Piper address, had a 3 foot wide right-of-way easement which had been created in 1927 when the land was subdivided. It provided access within the side line of land owned by Ms. Treweeke (34 Wolseley Street) to Seven Shillings Beach in Double Bay.

For forty years after its creation, the occupants of the unit block at 36 Wolseley Road did not use this right-of-way. They took an easier path to access the beach which crossed an adjoining property (over which they had no right of way). In 1967, this access was revoked and they sought to claim the right of way to 34 Wolseley Street.

Ms Treweeke requested the extinction of the right of way under section 89 (3) of the LC, relying on the abandonment by a non-user under section 89 (1) (b) .

The path over which the right-of-way passed presented many obstacles: there were two rock ledges (one 4 feet high, the other 7 feet high), a stone retaining wall, a bamboo plantation. impenetrable that Mrs Treweeke had planted, the frame of a swimming pool she built in 1956 and a chain-link fence (of which 36 Wolseley had contributed to the costs).

Justice McTiernan observed: “The non-user of the full length of the road can reasonably be attributed to its rushed condition in some places. It is unreasonable to attribute the non-user to forgoing such a pleasant amenity as a path to Double Bay Beach.

Judge Mason, agreeing with Judge McTiernan that the right of way had not been waived, said: “In my opinion, the non-user and the other acts and omissions… another means of access was still available.

Parker J. considered the effect of section 89 (1A) of the CA, introduced in 2009, which states:

“For the purposes of paragraph 89 (I) (b), an easement may be considered abandoned if the Court is satisfied that the easement has not been used for at least 20 years …”

He concluded that section 89 (1A) only applied “where there is no user of an easement for twenty years, and no other evidence to deny the intention of the beneficiary of the easement to abandon it ”.

After considering these factors, Parker J. concluded that the right-of-way easement had not been abandoned:

  • The lack of proof of the use of the right of way by the former owner of no. 8 from 1956 to 2008 could be explained as “maybe she didn’t need to use it”, not an intention to give up.
  • Although the fence at the rear did not have a gate to allow owners of no. 8 to access the passage, it was not an intention to give up. “The majority opinion in Treweeke was that the fence of the right-of-way, even when made by the dominant owner, did not lead to a finding of abandonment.
  • Building obstacles across the right-of-way such as raised beds and pergola was not an abandonment: Treweeke”.
  • The fact that the right-of-way is not “easily passable” because of flower beds and changes in height was not an abandonment. The obstacles could be removed.
  • Occasional uses of the right-of-way by the owners of no. 8 moving a table, and the access of the surveyors, were “acts of neighborhood” and not a proof of user or a claim of rights.
  • The registration of the boundary plan in 2010 with the right-of-way inscribed on it was a clear intention to retain the right-of-way.
  • Section 89 (1A) “does not result in an abandonment if there is real evidence of an intention not to abandon the easement in question” as was the case here from 2010.

The Court then considered obsolescence as a reason for extinguishing the right of way. She found that the easement was not obsolete for the following reasons:

  • The Court seized Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28, in which Mason P stated that in applying section 89 (1) (a), a court must keep in mind that “the easement was created for an indefinite future and intended to last in an environment evolving “.
  • The fact that the right-of-way had not been used for its original purpose of allowing access to remove nighttime dirt since 1908, when the sewer was hooked up, did not make it obsolete. The terms were not limited to this usage. It was a general right of way.
  • The Court noted that “Such lanes are part of the heritage of downtown Sydney. They also continue to be useful in providing access ”.
  • “The right-of-way is likely to be restored to its previous condition as a rear access lane”. It has not been shown that “no reasonable use was possible”.

Finally, the Court considered whether the extinction seriously hurt people entitled to the easement in financial terms.

He found that his existence added value to no. 8: The owners of n ° 6 “did not contest the [owners of no. 8] on their willingness to pay the cost of commissioning the right-of-way, or to provide any proof that the right-of-way has no value ”.


This decision shows how difficult it is to extinguish a right of way easement.

In Sydney city center, it can be nearly impossible to turn off a right of way on a passage for these additional reasons:

  1. The old passages, usually one meter wide, in Sydney city center have found new uses. They are used to access backyards, to avoid carrying items such as bicycles, sports equipment, bulky items, building materials around the house and to store garbage and recycling bins.
  2. The old passages have an important heritage if they are located in a heritage / conservation area.

The owners of no. 6 who acquired the passage title are in the same situation as their reigning predecessor, Miss Bridget Tubridy, who never sold the passage perhaps because it was nearly worthless. A right-of-way easement will sterilize the benefits of ownership of a passage as it interferes with the rights to use it except as a passage.

The best advice for a buyer of a downtown property is to have a surveyor prepare and save a demarcation or boundary plan showing the location of any passage, immediately after the end of the walk. purchase. This is especially recommended if no plan has ever been recorded that shows a right of way over the way that the terrain may benefit from.

Saving a plan which was key for the owners of no. 8 retaining the right of way in this case, because in doing so, they asserted their rights from the date of its registration, in 2010. This was long before the owners of no. 6 claimed that their rights had been waived.


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