Insights

In brief - Written undertaking viewed as sufficient to preserve owner's right to use easement

Recently the owner of a lot that has the benefit of a right-of-way easement sought an injunction protecting his rights to use the benefit. Instead of an injunction, the court ordered a written undertaking from the owners of the land the subject of the easement, preserving the owner’s rights and interest in the easement.

Dispute between neighbours over access through easement

Mr Norman owned a lot that had the benefit of a right-of-way easement located on the Smiths’ land.

Over time the relationship between the parties had deteriorated, mainly due to a dispute about the use of and access through the easement connecting the properties. Mr Norman alleged that the Smiths had denied him access to the easement and obstructed his access to his lot through the easement on various occasions.

Owner seeks injunction restraining neighbours from obstructing access to easement

Given the state of the relationship of the parties, counsel for Mr Norman submitted that:

• Several orders should be made, including a declaration that Mr Norman is entitled to exercise a right of way over the easement, and that an injunction be granted restraining the Smiths from obstructing access to or denying entry onto the easement

• An injunction ordered by the court, rather than an undertaking from the Smiths, was necessary

• Payment of damages to Mr Norman would not have been an adequate remedy, given the behavior of the Smiths and that the dispute was otherwise incapable of resolution

Court does not grant injunction despite being satisfied that nuisance had occurred

The court noted:

• The jurisdiction of the court to make a declaration is a wide one. However, there must be some real question in issue and a person who has a real interest in opposing the declaration sought. In the present case there was no dispute about the existence of the easement, or its use and benefit. Therefore, there was no utility in the court making a declaration.

• The Smiths were bound to allow Mr Norman to use the easement area as a right of way.

• The District Court has jurisdiction to grant an injunction pursuant to section 68(1)(b) of the District Court of Queensland Act 1967. However, the court can only grant an injunction in circumstances where there is actual, threatened, or apprehended trespass or nuisance to land.

• Whilst the court was satisfied a nuisance had occurred, the court declined to grant an injunction.

Undertaking seen as more practical means of protecting interest in easement

In lieu of an injunction, the court was satisfied that an undertaking by the Smiths would be a sufficient remedy in this case.

To ensure that the undertaking was capable of being enforced, the court stated that the undertaking should be made personally and jointly; have clear and unambiguous terms; and be capable of being performed at the time of its making.

The court ultimately decided that an undertaking was a sufficient remedy and a more practical means of ensuring that Mr Norman’s rights and interest in the easement were protected, as opposed to the making of a declaration and granting an injunction.

The court acknowledged that it did have the jurisdiction to grant an injunction as sought in the originating application and would have so ordered, but for the offer of an undertaking by the Smiths. On this basis the court was of the view that Mr Norman’s application had been successful. The Smiths were ordered to pay Mr Norman’s costs of and incidental to the proceeding, including reserved costs.

The court noted that an undertaking would amount to an enforceable obligation, a breach of which would entitle the court, on application, to grant an injunction in the future.

Court will not automatically grant injunction merely because one is sought

An easement is usually registered on title, and will therefore bind any future owners of the lots both subject to and benefiting from the easement. It is important to ensure an easement is drafted in clear terms and does not contain any provision that may ultimately prove problematic once land ownership changes.

This case highlights that the court will not automatically grant an injunction merely because one is sought. The court will consider the appropriate remedy (if any) depending on the specifics of each case.

In this instance, an undertaking from the Smiths will require Mr Norman to take future court action if the Smiths breach the terms of their undertaking. It is likely that such future action would, if successful, result in a costs order against the Smiths.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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