Dudley v Ainsworth [2021] NSWSC 1478

Dudley v Ainsworth [2021] NSWSC 1478

The fence and plantings constituted an actionable nuisance because, although the defendants were entitled to fence the easement boundary in principle, the single 7.4m opening denied sufficient access points for reasonable use of the right of carriageway. In particular, absence of access at the southern end of the easement impeded movement of large vehicles to and from the south-western area of the plaintiff's land, and absence of access opposite the roller doors of the large shed impeded movement of large vehicles between the easement and the shed. This was a real substantial interference with the plaintiff's enjoyment of the easement, warranting injunctive relief limited to creating...

Jurisdiction
Australia
Judgment Date
17 November 2021
Procedural Posture
Equity Proceedings Concerning a Right of Carriageway and Cross Summons for Modification of Easement / Principal Judgment After Hearing
Outcome
Fencing and planting held to constitute nuisance by obstructing the plaintiff's rights under the easement; injunctive relief to be granted; cross-summons for modification of the easement to be dismissed.
Legal Topics
['easements' 'right of Carriageway' 'actionable Nuisance' 'injunctive Relief' 'modification of Easement']
['land Law' 'equity'] ['easements' 'right of Carriageway' 'actionable Nuisance' 'injunctive Relief' 'modification of Easement']

Case Brief

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Procedural Posture

Equity Proceedings Concerning a Right of Carriageway and Cross Summons for Modification of Easement / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendants' fence, landscaping and associated works substantially interfered with the plaintiff's enjoyment of rights under the right of carriageway." 'Whether the defendants should be required by injunction to alter or remove parts of the fence, landscaping and associated works.' 'Whether the easement should be modified under s 89 of the Conveyancing Act 1919 (NSW) to permit the existing fence with a 7.4m gap.']

Ratio Decidendi

The fence and plantings constituted an actionable nuisance because, although the defendants were entitled to fence the easement boundary in principle, the single 7.4m opening denied sufficient access points for reasonable use of the right of carriageway. In particular, absence of access at the southern end of the easement impeded movement of large vehicles to and from the south-western area of the plaintiff's land, and absence of access opposite the roller doors of the large shed impeded movement of large vehicles between the easement and the shed. This was a real substantial interference with the plaintiff's enjoyment of the easement, warranting injunctive relief limited to creating...

Court Disposition

Fencing and planting held to constitute nuisance by obstructing the plaintiff's rights under the easement; injunctive relief to be granted; cross-summons for modification of the easement to be dismissed.

Orders

  • ['Defendants to take steps to ensure points of access are created at the southern end of the easement and opposite the roller doors to the large shed.' 'The access point at the southern end of the easement should be no less than 5m in width, and the access points opposite the roller doors should be no less than the...