A recent judgment from the Supreme Court of New South Wales provides crucial clarity for property owners regarding the extent of rights granted by an easement, particularly in the context of long-established structures.
The case of Thomas v Pearson concerned a dispute between owners of adjoining properties in Cammeray, revolving around a double garage located on the defendant’s land but used by the plaintiffs under an ‘Easement for Support’ created in 1988.
The Background: A Garage, a Deck, and a Development Consent
The plaintiffs’ rights to use the garage were established by a transfer registered in December 1988. Critically, the garage with its flat concrete roof had already been built by this time.
Since the early 1990s, the area directly above the garage roof had been used by the owners of the servient tenement (the defendant’s property) as an outdoor decked area adjacent to their swimming pool. The plaintiffs were aware of this decking and a surrounding fence for over 30 years but had never previously objected.
The dispute arose when the current defendant obtained development consent in 2023 to replace the existing deck and construct a new pavilion roof over the area above the garage. The plaintiffs commenced proceedings, arguing that any structure above the garage—both the existing deck and the proposed new works—interfered with their easement rights.
The Core Legal Dispute: Is the Easement Unlimited in Height?
The plaintiffs advanced a novel argument. They contended that the easement granted them the right to “maintain… a structure suitable for the garaging of motor vehicles” and that this right was unlimited in height. They argued that this would allow them, now or in the future, to raise the height of the garage, replace the flat roof with a gabled one, or even install a car stacker system. They claimed that the deck and proposed pavilion would prevent this and therefore constituted a nuisance.
The defendant argued that the easement was not a blank cheque. They contended that the rights were tied to the physical garage structure as it existed at the time the easement was granted and that the plaintiffs had no right to significantly alter its height or form.
The Court’s Decision and Key Legal Principles
The Court dismissed the plaintiffs’ claim, finding in favour of the defendant. In doing so, the Court reinforced several key principles of property law:
Construction is Key: The rights granted by an easement are determined by construing (interpreting) the original grant document. The court looks at the text, context, and purpose of the instrument from the perspective of a reasonable person at the time of the grant.
The Significance of the “As-Built” Structure: The Court found that the most critical fact was that the garage had already been built at the time of the grant. A reasonable person would have understood the easement as securing the right to use and maintain that specific structure, not a hypothetical future structure of unlimited size.
Easement for Support is a Negative Right: The Court emphasised that an “Easement for Support” is primarily a negative right—a right not to have the support removed. It does not generally confer positive rights to alter or rebuild the supported structure in a fundamentally different way.
No Substantial Interference Found: The Court held that the existing deck and the proposed works did not substantially interfere with the plaintiffs’ core right, which was to use the existing garage for its intended purpose. There was no evidence that the garage had become unsuitable for parking cars over the previous 30 years, or that the deck had prevented necessary maintenance.
Implications for Property Owners
This judgment serves as an important reminder for both dominant and servient tenement owners:
For Servient Owners: Your property rights are protected. An easement is not an invitation for the dominant owner to continually expand or alter their rights in a way that was not originally intended. The specific terms and context of the grant are paramount.
For Dominant Owners: The scope of an easement is not limitless. If you intend to make significant changes to a structure benefiting from an easement, you must carefully review the original grant. In many cases, you may need the servient owner’s consent or may need to seek orders from the Court, which will require a concrete proposal and evidence of substantial interference.
The case underscores the importance of seeking expert legal advice when dealing with property easements, whether you are looking to understand your rights, enforce them, or develop a property burdened by them.
