The case of Au v Berlach [2022] NSWSC 81 concerned proceedings in the Supreme Court of New South Wales (Court) by the Plaintiff who sought declarations and injunctions against the Defendants to limit the Defendants' use of an easement over the Plaintiff's property in the Central Coast. By cross-summons, the Defendants sought orders to stop the Plaintiff from interfering with the Defendants' rights under the easement, which included orders requiring the Plaintiff to remove certain signage, closed circuit television (CCTV) cameras, fencing, and other items from the land the subject of the easement.

The following issues were considered by the Court:

• As a matter of construction, what is the extent of the Defendants' express and ancillary implied rights under the easement?

• Could any of the declarations and injunctions sought by the Plaintiff be granted?

• Could any of the remedies sought by the Defendants be granted?

Whilst the easement did grant the Plaintiff some rights as the owner of the servient tenement, the Court found that it should be construed to give the Defendants the benefit of the widest possible rights, particularly because it was the sole means of access to the Defendants' property from the public road.

The Court declined to make any of the declarations and injunctions sought by the Plaintiff, as the orders "[did] not reflect the relatively well settled rights and obligations…under the easement" (at [6]).

The Court granted relief to the Defendants in relation to some of the specific matters raised during the proceedings, including orders requiring the Plaintiff to remove signage and CCTV cameras that are not reasonably required for the identification of the Plaintiff's property and security purposes, permitting the Defendants to erect a sign indicating the location of the Defendants' property, and restricting the Plaintiff's interference with a sign erected by the Defendants, and an injunction requiring the Plaintiff to at the Plaintiff's expense remove the fence on the eastern side of the easement and other items on or near the easement.

The Plaintiff was also ordered to pay the Defendants' costs of the proceedings.

The parties' properties were created as a result of a Torrens subdivision. The subject easement was registered on both titles and its section 88B Conveyancing Act 1919 (NSW) instrument (Section 88B Instrument) contained the following terms [our underlining]:

"Right of way shown on the plan being 3.575 metres wide so shown on the plan and following the western boundary of [the Plaintiff's property] as shown on the abovementioned plan being a right of way or use or passage at all times and for all purposes for the benefit of the proprietor for the time being of [the Defendants' property], his heirs, executors, administrators and assigns and their servants, aides and workmen with or without vehicles or animals and is hereby declared that the said reserved right of way is appurtenant to the lot described as [the Defendants' property]."

The Defendants' property is located at the rear of the Plaintiff's property. But for the easement which provides a lawful means of access, the Defendants' property would be completely landlocked (at [3]).

The dispute arose as a result of different views about the breadth of the rights conferred by the easement, and concerns regarding an alleged excessive use by the Defendants of a leaf blower for easement maintenance.

The Plaintiff relevantly sought declarations and injunctions in the following terms in respect of the Defendants' use of the easement:

• First Declaration – "The boundaries of the Easement cannot lawfully be crossed by the defendants and their associates and agents. Any pruning of foliage on the property is only legal if done precisely within the boundaries and only if reasonably required for use of the Easement as a right of way" (see [59]).

• Second Declaration – "The defendants have no right to enter the Easement to perform routine maintenance on the driveway" (see [70]).

• Third Declaration – "The defendants (personally) are not entitled under the terms of the Easement to operate leaf blowers on the Easement or perform any pruning of plants. Except that they may pay a professional gardener to blow leaves, trim vegetation strictly within the Easement only, up to twice per week" (see [71]).

• Fourth Declaration – "Parking or stopping vehicles on the Easement is not a legal use of the Easement except at the end near the boundary of the [Defendants' property] when it is not practical for a heavy vehicle to drive across the bridge" (see [83]).

• First Injunction – "The defendants must never, for any reason, breach the boundaries of the Easement and must never interfere with the plants, animals or anything else on the [Plaintiff's] property" (see [91]).

• Second Injunction – "The defendants personally, must not, [sic] operate leaf blowers on the [Plaintiff's] property" (see [91]).

The cross-summons by the Defendants relevantly sought the following (see [16]):

• Injunctions – An injunction restraining the Plaintiff from interfering with the easement and the Defendants' use and enjoyment of the easement and an injunction restraining the use of CCTV cameras and other surveillance to monitor the Defendants' use of the easement.

• Orders – Orders requiring the Plaintiff to remove items from the easement.

When interpreting easements, a Court is to refer to the material in the folio identifiers, the registered instrument, the deposited plans, and the physical features of the tenements. If these sources clearly describe the easement, then there is no basis for reading down the clear and unqualified words of the easement (see [42] to [43], Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 (Westfield Management case), and Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 (Sertari case)).

The Court found that in this case it was not necessary to have recourse to other material beyond the mere words of the Section 88B Instrument itself, which conferred a right of "way", "use", and "passage", "at all times" and "for all purposes" for the benefit of the Defendants as the proprietor of the dominant tenement (at [52]). The Court observed the importance of the easement as the only lawful means of access to the Defendants' property (at [53]).

The Court in interpreting the broad expression "for all purposes" made reference to the High Court decision in the Westfield Management case, which at [30] interpreted the expression as encompassing "all ends sought to be achieved by those utilising the Easement in accordance with its terms". This interpretation emphasises that the broader the wording of an easement, the greater the burden upon the proprietary rights of the servient tenement owner.

The Court found that the First Declaration and Second Declaration sought by the Plaintiff were contrary to the principle that the ancillary right of the dominant tenement owner to maintain and repair an easement includes a right to enter the servient tenement owner's land for this purpose, but only to do the necessary work in a reasonable manner (see [60], Hare v van Brugge [2013] NSWCA 74; (2013) 84 NSWLR 41 (Hare case) and Jones v Pritchard [1908] 1 Ch 630). The Court held that the ancillary right extends to allowing the Defendants to, for example, enter the Plaintiff's property to use a chainsaw and cut a fallen tree leaning over the easement, but only as necessary to maintain the easement.

The Court observed that the right operates in tandem with the common law right to abate a nuisance, however, is broader than the common law right which only permits the cutting of overhangs from within the encroached property in the absence of consent from the neighbour to enter their land (see [61] to [62]).

The Court found that based on the ordinary experience of pruning gardens, good pruning practice sometimes requires particular plants to be pruned at particular points, and may also be required as a matter of safety. The Court held that in this case it may involve pruning some plants a few centimetres into the Plaintiff's property, such that it would not be practical nor feasible to insist on "laser-like precision" for pruning to only occur within the boundaries of the easement (at [68]).

The Court also found that the Plaintiff's purported exercise of rights under the easement amounted to an "entirely unreasonable interference" with the Defendants' enjoyment of their ancillary right to maintain the easement (at [68]). This is contrary to the "reasonable user" principle, which applies to both the dominant tenement and servient tenement owners and requires that they both exercise a degree of restraint in relation to an easement site. Neither the dominant tenement and servient tenement owners may exercise their rights in a way which unreasonably interferes with the enjoyment of the other's rights (see [46] and [24] to [26] of the Hare case).

The use of a leaf blower, by whom, for what, and how frequently a leaf blower should be used, depends on the express terms of the easement and any ancillary rights they attach (at [75]).

Whilst the Court noted that there are no express terms about the use of a leaf blower in the Section 88B Instrument, the breadth of the express term "use" encompasses an entitlement for the Defendants to keep the easement visually appealing and well-kept because it is effectively the Defendants' front driveway. Therefore, the Defendants are entitled to keep the easement free of leaves and may do so more than once a day if necessary (at [82]). The Court interestingly cautioned that if there are only a small number of leaves, it might be prudent for the Defendants to remove them with a broom rather than a leaf blower (at [83]). 

The Court refused to grant the Third Declaration and found that as a general proposition, the Defendants are entitled to use a leaf blower on the easement land personally or by an agent, such as a gardener, as an incident of the ancillary right to repair and maintain the easement (at [78]).

Any use of a leaf blower must occur within permissible hours (7 am to 8 pm on weekdays and 8 am to 8 pm on weekends) in order to comply with regulation 51 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW).

The Court refused to make the Fourth Declaration as the Defendants' rights under the easement extend to permitting visitors to leave their vehicle unattended for the duration of their visit to the north of the Plaintiff's garage, because to do so would not unreasonably interfere with the Plaintiff's rights with respect to the Plaintiff's property (at [89]).

With respect to stopping vehicles, the Court found that gardeners periodically stopping their vehicle and moving their utility down the easement in stages to clear vegetation would not be an unreasonable interference with the Plaintiff's rights provided that the vehicle could be moved upon request for anyone wishing to enter or leave the Plaintiff's property to do so (at [90]). Since the easement is a single lane, any vehicle using the easement at the Defendants' request is required to drive onto the Defendants' property to turn around or reverse back up the easement as it would amount to the tort of trespass if the vehicle went off the easement onto the Plaintiff's property to effect a manoeuvre.

The First Injunction and Second Injunction were sought to give effect to the declarations sought by the Plaintiff. Accordingly, the Court refused to grant the First Injunction and Second Injunction for the same reasons it refused to grant each declaration (at [92]).

The Defendants contended that the Plaintiff had set up multiple signs visible at the entrance of the easement where it met the main road which referred to the Plaintiff's street address number, and which had the effect of confusing people and dissuading people from entering the easement.

The Court accepted the Defendants' submission that the owner of a servient tenement cannot engage in conduct which has the effect of preventing or dissuading people from using an easement for its intended purpose (at [100]). Whilst the Plaintiff was entitled to erect a sign which identified the Plaintiff's street address number, it is impermissible if the identification is done in a way which interferes unreasonably with the enjoyment of the Defendants' rights under the easement. 

Whether there has been an unreasonable interference with the Defendants' rights was to be determined from the objective effect of the Plaintiff's erection of the signs, and thus the Plaintiff's subjective intention to put up the signs to stop people from coming to the Plaintiff's property to ask how to get to the Defendants' property was irrelevant (at [103]).

The mere fact that the signage confused people and had the effect of dissuading people from entering the easement amounted to a breach of the obligation not to do anything which unnecessarily interfered with the Defendants' enjoyment of their rights. 

The Court ultimately ordered for the Plaintiff to remove all relevant signage except for two signs at the entrance of the easement and to not interfere with a sign erected by the Defendants in the exercise of their ancillary rights to improve an easement to facilitate their rights under the easement (see [105] to [108], see also the Westfield Management case and Sertari case). 

The Court found that the Plaintiff's installation of four posts containing a total of 17 CCTV security cameras along the eastern side of the easement with a sign which stated "Smile - you're being recorded" caused personal distress to the Defendants and amounted to both a "substantial interference" with the Defendants' proprietary rights under the easement, as well as giving rise to a personal claim in nuisance because the extent of the surveillance demonstrated an intention by the Plaintiff to "snoop" on the Defendants' activities on the easement, as evidenced by the Plaintiff spending "hours and hours" reviewing the footage (at [117], see also Raciti v Hughes (1995) 7 BPR 14 (Raciti case) at 837).

The Raciti case concerned a dispute between neighbours involving the installation of floodlights and camera surveillance to illuminate and record activities in a neighbour's backyard. The Plaintiff sought to distinguish the present case from the Raciti case based on the fact that what was being filmed was the Defendants' activity on the easement, rather than in their own property. However, this was rejected by the Court given that the easement was not relevantly different to the Defendants' property, for the purposes of an action in nuisance. The Defendants had substantial proprietary rights in the easement, which was effectively their front driveway (at [118]).

The Court also commented in obiter that even if a nuisance claim had not been made out, the distress caused by the excessive surveillance would have constituted a breach of the servient tenement owner's obligation not to interfere unreasonably with the dominant tenement owner's enjoyment of the easement, which would have led to the same result (at [119]).

The Court ultimately ordered the Plaintiff to remove all of the CCTV cameras except for the minimum number of cameras necessary to provide coverage along the easement for security, as opposed to monitoring or intimidating purposes (at [120]).

The Defendants' adduced an expert report from a heritage consultant in the proceedings which opined that none of the materials or finishes used for items, including a fence, constructed by the Plaintiff on or near the easement on the Plaintiff's property was of an Australian Colonial style, contrary to the terms of the restrictive covenant which prohibited the building of any structures unless it was constructed in an "Australian Colonial style in natural colours such as brown, green or beige" (at [124]). 

The Plaintiff submitted that the restrictive covenant had no effect due to clause 1.20 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP), which enabled development on land to be carried out in accordance with the Codes SEPP except for in certain circumstances. However, the Court found that the Plaintiff failed to prove that the fence was exempt development under the Codes SEPP, such that issues of whether the covenant is suspended by clause 1.20(1) or saved by clause 1.20(2)(c) (which provides that clause 1.20(1) does not apply "to a covenant imposed by an owner…of the land concerned, other than a covenant that has been required by a council to be imposed…") did not arise (see [130] and [138]).

Ultimately, the Court found that the Defendants were entitled to an injunction for the removal of the fence and other items identified in the expert report which are to be removed at the Plaintiff's expense. The Court also found that the Plaintiff's desire to implement some sort of screening, in an Australian Colonial style as stated in the covenant, was reasonable to preserve privacy. Accordingly, the Court directed for the parties to reach agreement on what would replace the fence following its removal, and in the event they cannot agree, the Court would refer a suitable expert (at [139]).

The Court did not grant the relief sought by the Plaintiff and held that the Defendants had a right to use and enjoy the easement. To give effect to the Defendants' right, the Court relevantly ordered the Plaintiff to remove signage, CCTV cameras, and a fence from the easement land.

As the Court described, proximity between neighbours "…will require, from time to time, a degree of give and take, tolerance and common sense to ensure peaceful co-existence", which reminds owners to carefully consider the scope of ancillary rights granted under an easement and that excessive monitoring over an easement using surveillance devices may also give rise to an action in nuisance, which may be personally enforced.