The recent decision of Clough v Breen (No. 4) [2023] NSWSC 1155 handed down on 22 September 2023 had to decide several issues between neighbours in relation to a right-of-way. The case involved a complex and protracted dispute about the right to use a right-of-way by pedestrians and to supply services. The allegations made by the parties included excessive use of the right-of-way, trespass beyond the boundary of the right-of-way, obstruction and/or interference with the use of the right-of-way.

The case includes a succinct summary of the legal principles relevant to rights-of-way. However, first a couple of definitions. The “dominant tenement owner” is the owner with the benefit of the right of way. The “servient tenement owner” is the owner burdened by the dominant tenement owner’s right to use the right of way. The “servient tenement” is the land subject to the right of way.

Actions in nuisance

Obstruction of a dominant tenement owner’s use of a right-of-way or other easement is actionable in nuisance. Whether an obstruction to a right-of-way is actionable or not is a question of degree. It depends on the circumstances of each case. In the case of a private right-of-way or similar easement, the obstruction is not actionable unless it is a real and substantial interference. A substantial interference does not require physical interference. Any acts or circumstances which create danger, or impede the freedom of decision to exercise the right of the dominant tenement owner, or impose a risk or cost on doing so, could be substantial interference with the exercise of the right.

Actions in trespass

Trespass to land is not available to dominant tenement owners because they do not have possession.  A person who uses a servient tenement excessively in purported exercise of a right-of-way commits a trespass.


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