In Sheppard v Smith [2022] NSWCA 167, the appellants were the owners of a property in Sydney’s inner west. Their neighbours (the respondents in the proceedings) and had a right of way over an L-shaped strip of land at the rear and side of their property. The appellants brought a case that the right of way or easement that the respondents had the benefit of had been abandoned and should be extinguished. This would have the effect of preventing the respondents from crossing the land of the appellants.
The easement was created in 1885 and was used in part to remove “night soil.” The passageway was not used for this purpose after 1908 with the connection to the sewer lines. The easement was not registered on the appellants land until March 2019 when the owners took steps to cause the registration. Before that time the passage way had been in the name of the original owner.
s89 of the Conveyancing Act empowers the court to extinguish an easement if it has been abandoned. It was such an application that was before the court.
The court held that by the respondents taking steps to register the right of way on the title beginning in 2010 affirmed the existence of the easement and was an argument against abandonment.
From time to time small structures were erected on the right of way and it was argued that these were evidence of abandonment. The court rejected this argument on the basis that the structures were not permanent and did not impede the use of the right of way.
An argument was made by the owners that the easement was obsolete and therefore abandoned in this way. This argument was also rejected because in the original grant the removal of night soil was not the only use to which the right of way could be put.
The legislation provides that if an easement is not used for 20 years it is deemed to have been abandoned. The court held that although an easement may not have been used that did not mean that it would not be used in the future.
The owner’s case that the easement should be extinguished failed and the neighbours continued to have the right to use the right of way.
