The power of the Court to modify or extinguish easements

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The power of the Court to modify or extinguish easements

By Ivana Hayman and Alyce Kliese

The recent decision of Sheppard v Smith [2022] NSWCA 167 provides a summary of the requirements under section 89 of the Conveyancing Act 1919 (the Conveyancing Act) with respect to the power of the Court to modify or wholly (or partially) extinguish an easement, in circumstances where it is alleged that a right of way easement is abandoned.

The law

Section 89 of the Conveyancing Act provides the following:

89   Power of Court to modify or extinguish easements, profits à prendre and certain covenants

(1)  Where land is subject to an easement or a profit à prendre or to a restriction or an obligation arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the easement, profit à prendre, restriction or obligation …

Observations of the Court of Appeal in Sheppard v Smith

The Court determined not to extinguish the right of way easement, and its reasoning included the following:

  1. The fact that the beneficiary (Smith) took active steps to record the presence of the right of way on their certificate of title was deemed a public form of affirmation to its existence.
  2. No abandonment of the right of way was quantified as part of the evidence in the proceedings. Even though gates, garden beds and other features were built over the right of way and impeded or obstructed access to it, the lack of permanency in these garden features had to be considered against the active steps already taken ( i.e. the act of recording the right on title as mentioned above).
  3. The lack of use of a right of way was a relevant consideration to establish whether an intention to abandon has been manifested, but it was not the only consideration and therefore not sufficient on its own.
  4. The genuine intention of the owner benefiting from the right of way is relevant in an assessment of obsolesce. One is to look to the purpose of the right of way and any practical benefits that may continue to exist. For example, is the purpose of the right of way restricted? Was there a change to the character of the neighbourhood?
  5. For a right of way that was not regularly trafficable and had not been used in some time, an evaluation is required as to whether the proposed extinguishment would or would not substantially injure the owners who receive the benefit of the right of way (Smith).

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