Right of ways are common and most people are familiar with the expression, but how many of us are aware of the legal nature of a right of way and the rights and responsibilities that apply?

 

A recent decision of the High Court, Handforth v Kokomoko Farms Limited (“KFL”) involved two neighbours and a misunderstanding about what the right of way was, and the extent of each party’s entitlements. This misunderstanding proved to be expensive.

 

In 1990, KFL purchased a block which adjoined its existing farm (Kokomoko Farm). KFL then subdivided the new block which contained a cottage, later selling one allotment as a lifestyle block. While still the owner of the lifestyle block, KFL created a right of way over the lifestyle block in favour of Kokomoko Farm. The Handforths (H) became the owners of the lifestyle block some time later.

 

Right of ways and a type of easement in which the owner of one property has rights over another person’s property. The rights and responsibilities associated with the right of way run with the land and this is reflected by it usually being noted on the certificates of title to the affected properties. In this case, the ‘dominant tenement’ was Kokomoko farm, because it enjoyed the benefit of the right of way. The ‘servient tenement’ was the lifestyle block, because the right of way passed through that block and it serves the owner of the dominant tenement.

 

The right of way was created to provide access to the woolshed and cattleyards on Kokomoko Farm. KFL was permitted to “at all times by day and by night to go, pass, and repass, with or without vehicles, machinery… over and along the land over which the easement is granted”. The shape and dimensions of the right of way were designed to allow mobs of sheep and cattle to be turned by dogs and to ensure an efficient farming operation could be carried out.

 

H argued that the right to “go, pass and repass” did not include unloading and loading of cattle trucks, grazing of stock, turning of vehicles or parking. H also claimed that new gates that had been installed since the right of way had been created were not lawful points of access or exit. H believed the right of way was limited to the gravel driveway (which was also used by H to access the cottage), and not the full area of land over which the right of way had been granted.

 

The High Court did not accept H’s submissions. Firstly, the Court looked at “the circumstances in which, and the purposes for which, the right of way was created”, taking the view that the shape and the size of the right of way indicated that the purpose was wider than just access to and from the cattleyards and woolshed. The right of way permitted KFL and its contractors to unload and load livestock trucks and trailers on the right of way, turning vehicles for that purpose, and parking the trailer unit during the unloading process. The Court recognised however, that obstruction to the right of way must be kept to a minimum because the gravel road through the right of way was also the driveway to H’s home.

 

Secondly The Court rejected H’s assertion that the new gateways were not lawful points of entry and exit, finding that the new gates were “consistent with the ability, at the time the right of way was created, to pass freely between the right of way and Kokomoko farm at any point along the boundary between the two”.

 

Thirdly, the Court held that if the right of way only included the gravel driveway, it would have been described as such. Instead, the plan attached to the right of way showed the legal boundaries as extending beyond the gravel driveway. H had constructed a fence that substantially restricted, and effectively changed the nature of the right of way. The fence narrowed the usable width of the right of way to 4 metres and prevented KFL from having access to the cattleyards, the loading race and the loading bank. This amounted to a substantial interference with KFL’s rights.

 

Because the interference was “substantial” KFL was awarded $4,530 compensatory damages for losses suffered as a result of H’s interference with its rights and $3,500 exemplary damages. The Court awarded exemplary damages to mark its disapproval of conduct that was deliberate, outrageous and designed to substantially interfere with and inflict damage on KFL’s farming operation. The Court noted that H was entitled to seek legal advice and if necessary commence proceedings against KFL if they thought KFL was infringing their rights. Instead H chose to act unilaterally and erect the fences, knowing that this would be detrimental to KFL.

 

If your property has the benefit or burden of a right of way or other easement it is important that you clearly understand the extent of your rights and obligations. As we have seen in Handforth v Kokomoko Farms Limited ‘taking matters into their own hands’ when disputes arise can be expensive. If you are unsure about a right of way that affects your property or any other easement we would encourage you to contact us.