Rights of way – if you don’t use them,
do you lose them?
Just how hard it is to
extinguish a right of way for
non-use was recently
demonstrated in the decision of
Sheppard v Smith  NSWSC
1207 (23 September 2021), a
decision of the Supreme Court of
New South Wales (Parker J).
The story began in January 1883, when Miss Bridget
Tubridy purchased land in Ferdinand Street, Birchgrove (an
inner-city suburb of Sydney, next to Balmain). In true style
as a 19th century property developer, she paid £87 for the
land, borrowed £400, built a pair of terrace houses (with a
party wall between them), subdivided and sold them for £350
each in October 1885, yielding a tidy profit. The terraces
are basic two-storey terraces with two bedrooms upstairs.
Today, they are worth more than $2 million each.
Birchgrove was not sewered at the time. The terraces had
“water closets” (outhouses or “dunnies”) at the rear from
which “nightsoil” was collected in sanitary pans with lids
(“pans”). The nightsoil collector (the “dunny man”) used a
narrow passageway (a “dunny lane”) to take the full pan from
the “dunny” to his “dunny cart” and took it away to empty.
A passageway 3 feet 5 inches wide (1.045 metres) ran from
Ferdinand Street, along the side of number 6 to the rear,
when it took a right hand turn towards the rear of number 8
in the shape of an inverted “L” to give access to the
outhouse (see the plan below).
When Miss Bridget Tubridy sold no. 8, she granted an
easement for right of way over the passageway to the
purchaser. When she sold no. 6, the passageway was not
included in the land sold. It remained in her ownership as a
separate parcel of land.
A sewer line was laid under the passageway in 1908,
servicing the terraces. From the evidence, the passageway
had probably not been used as an access to no. 8 for many
years, although it had a gate on the street for much of the
time. In recent years, the owner of no. 6 had used the
passageway as an extension to their rear yard and had
installed raised garden beds and a pergola on the path of
These physical obstacles meant that the owners of no. 8
had no access to their rear yard using the passageway. They
registered a plan of delimitation in 2010, which recorded a
right of way over the passageway, to the benefit their
property, reflecting the grant in 1885. This is the plan
with the passageway highlighted in yellow:
When the owners of no. 6 purchased in 2011, they obtained
a survey report which showed the passageway with raised
garden beds built and a pergola on it. The report noted that
“further investigation would be required to determine the
ownership” of the land shown as passageway.
The owners of no. 6 repositioned the garden beds along
the passageway in 2014. Later, they enclosed a roofed area
across the passageway, effectively making it part of their
room, without obtaining Council Approval.
In 2017, they owners of no. 6 made a Primary Application
to acquire title to the passageway based on continuous
possession that they and their predecessors in title had
enjoyed over the passageway over many years, without
reference to the right of way.
But when the title to the passageway issued, it had an
easement for right of way noted upon it in favour of the
owners of no. 8 (Smith - the defendants), because that
easement was described in the plan of delimitation
registered in 2010.
The Law and the
The owners of no. 6 (Sheppard – the plaintiffs) applied
to the Court for an order extinguishing the easement for
right of way.
They relied on the three grounds for extinguishment which
are set out in section 89(1) of the Conveyancing Act 1919
(NSW) (the “CA”):
- he right of way is obsolete, or unreasonably
impedes the plaintiffs’ use of the land without securing
practical benefit to the defendants; or
- the easement has been abandoned; or
- extinguishment of the easement would not
substantially injure the defendants.
The main ground was that the easement had been
Justice Parker referred to the leading Australian
authority on abandonment of an easement - Treweeke v 36
Wolseley Road Pty Ltd (1973) 128 CLR 274 (High Court of
In that case, 36 Wolseley Road, the owner of land at that
address in Point Piper, had the benefit of an easement for
right of way 3 feet wide which had been created in 1927 when
the land was subdivided. It gave access inside the side
boundary of land owned by Mrs Treweeke (34 Wolseley Street)
down to Seven Shillings Beach at Double Bay.
For forty years after it was created, the occupants of
the block of units at 36 Wolseley Road did not use that
right of way. They used an easier path to obtain access to
the beach which ran across an adjoining property (over which
they had no right of way). In 1967 that access was revoked,
and they sought to assert the right of way over 34 Wolseley
Mrs Treweeke applied to extinguish the right of way under
s 89(3) of the CA, relying upon abandonment by non-user
under s 89(1)(b).
The path over which the right of way ran had many
obstructions: There were two rock ledges (one 4 feet high,
the other 7 feet high), a stone retaining wall, an
impenetrable bamboo plantation that Mrs Treweeke had
planted, the framework of a swimming pool which she built in
1956 and a chain wire fence (to which 36 Wolseley had
Justice McTiernan observed “The non-user of the total
length of the way can reasonably be put down to its
precipitous condition at places. It is not reasonable to
attribute non-user to renunciation of such a pleasant
amenity as a path to the beach at Double Bay.”
Justice Mason, agreeing with Justice McTiernan that the
right of way had not been abandoned, said: “In my view the
non-user and other acts and omissions … were equally
consistent with the existence of an intention not to use the
right of way whilst an alternative means of access remained
Justice Parker considered the effect of s 89(1A) of the
CA, introduced in 2009, which states:
“For the purposes of s 89(I)(b), an easement may be
treated as abandoned if the Court is satisfied that the
easement has not been used for at least 20 years …”
He found that s 89(1A) applied only “in a case where
there is no user of an easement for twenty years, and no
other evidence to negate the intention of the person
benefitting from the easement to abandon it”.
After considering these factors, Justice Parker found
that the easement for right of way had not been abandoned:
- The lack of evidence of use the right of way by the
prior owner of no. 8 from 1956 to 2008 could be
explained as “she may have had no need to use it”, not
an intention to abandon.
- Although the fencing at the rear did not contain a
gate to allow the owners of no. 8 to access the
passageway, this was not an intention to abandon. “The
majority view in Treweeke was that the fencing
off of the right of way, even when contributed to by the
dominant owner, did not sustain an inference of
- Construction of obstacles across the right of way
such as the raised garden beds and pergola was not an
abandonment: “I see no real distinction between the
circumstances in this case and the natural impassability
of the right of way in Treweeke”.
- The fact that the right of way is not “readily
trafficable” because of the garden beds and changes in
height was not abandonment. The obstacles could be
- One-off uses of the right of way by the owners of
no. 8 to move a table, and access by surveyors, were
“neighbourly acts” not evidence of user or an assertion
- Registration of the plan of delineation in 2010 with
the right of way of way noted on it was a clear
intention to retain the right of way.
- s 89(1A) “does not result in an abandonment if there
is actual evidence of an intention not to abandon the
easement in question” as there was in this case from
The Court then considered obsolescence as a ground
for extinguishment of the right of way. It found that the
easement was not obsolete for these reasons:
- The Court referred to Durian (Holdings) Pty Ltd v
Cavacourt Pty Ltd  NSWCA 28, in which Mason P
said that when applying s 89(1)(a), a court must bear in
mind that “the easement was created for an indefinite
future and destined to enure in a changing environment”.
- The fact that the right of way had not been used for
its original purpose to provide access to remove
nightsoil since 1908 when the sewer was connected, did
not make it obsolete. The terms were not limited to that
use. It was a general right of way.
- The Court noted that “Such lanes are part of
Sydney’s inner city heritage. They also continue to have
a use in providing access”.
- After noting that passageways nearby had been
restored for use, the Court said: “The right of way is
capable of being restored to its former condition as a
rear access laneway”. It was not demonstrated that “no
reasonable use was possible”.
Finally, the Court considered whether the extinguishment
will substantially injure the persons entitled to the
easement in financial terms.
It found that its existence added value to no. 8: The
owners of no.6 “did not challenge the [owners of no. 8]
about their willingness to pay the cost of making the right
of way usable, or lead any evidence to show that the right
of way has no value”. In fact, the owners of no. 6 knew that
if it were not encumbered, the land affected by the right of
way was valued at $68,200 (stamp duty was paid on the
Primary Application on that value).
This decision shows how hard it is to extinguish an
easement for right of way.
In inner city Sydney, it may be close to impossible to
extinguish a right of way over a passageway for these
- Old passageways, typically 1 metre wide, in inner
city Sydney have found new uses. These days, they are
being used to access rear yards, to avoid taking items
such as bicycles, sporting equipment, bulky items,
building material through the house and to store garbage
and recycling bins.
- Old passageways have heritage significant if located
in a heritage/conservation zone.
The owners of no. 6 who acquired title to the passageway
are in the same position as their predecessor in title, Miss
Bridget Tubridy, who never sold the passageway, possibly
because it was almost worthless. An easement for right of
way will sterilise the benefits of ownership of a passageway
and devalue the land because it stymies rights to use it,
except as a passageway.
The best advice for a purchaser of an inner city property
is to have a surveyor prepare and register a plan of
delimitation or boundary definition which shows the location
of any passageway, immediately after the purchase is
completed. This is especially recommended if no plan has
ever been registered which shows a right of way over the
passageway from which the land may benefit.
The registration of a plan that was the key to the owners
of no. 8 retaining the right of way in this case, because by
doing so, they asserted their rights from the date it was
registered, in 2010. This was long before the owners of no.
6 asserted that the right of way had been abandoned.