A couple I acted for had used a side passageway to access their backyard for as long as they had owned the property.
It was how deliveries were made. It was how tradespeople came and went. It was, as far as they were concerned, simply part of how the property worked.
Then their neighbour installed a structure that reduced the usable width of the passage. No conversation beforehand. No agreement. Just a fait accompli.
When they raised it, the neighbour pointed out that the land was his. That was true. It was also only part of the answer.
What Is a Right of Way?
A right of way is a type of easement. It allows the owner of one property (the dominant tenement) to pass over part of another (the burdened tenement) for a specified purpose.
In New South Wales, rights of way are registered under the Torrens title system. Registration matters. It makes the right indefeasible, a real property right attached to the land, not a personal arrangement between neighbours that can be revoked. It also binds successive owners. The right travels with the land regardless of how many times either property changes hands. A right of way created a century ago may be entirely operative today, even if neither current owner knows its history.
Can a Neighbour Obstruct a Right of Way?
Not lawfully, if the right is validly registered and the obstruction interferes with its use.
The owner of the burdened land cannot take steps that interfere with the right.
That includes physical obstructions: structures, plantings, locked gates, or anything else that reduces or prevents access in a way inconsistent with what the right of way allows.
A partial obstruction can be just as significant as a complete one. In the matter I mentioned earlier, the neighbour’s structure did not completely block the passage, but it significantly reduced its usable width and made it impractical to use in the way it always had been.
The obstruction may not even sit on the ground. A structure projecting into the space above the right of way can interfere with it just as effectively, because a right of way over land typically encompasses the airspace above it to the extent necessary for reasonable use.
Finding the Registered Instrument
When a dispute arises, the starting point is locating the registered instrument that created the right of way. This is the document recorded on the title of the burdened property that formally establishes the right.
Identifying that instrument is important, but further steps are usually required.
Looking beyond the instrument
The registered instrument may say very little. Older easements in particular were often expressed in the most general terms: “right of way” or “right of passing and repassing,” without specifying width, permitted uses, or any other detail. Reading those words tells you the right exists. It does not tell you much about what it actually covers.
Determining the true scope of a right of way usually requires looking beyond the document. Courts approaching these questions consider a range of factors.
The purpose for which the right was created is significant. That purpose is not always stated expressly, but it can often be inferred from the surrounding circumstances, including how the right has actually been exercised over time.
Longstanding, consistent use without objection can be powerful evidence of what the right was understood to permit. A right of way that has been used in a particular way for decades, without challenge, carries a different weight to one where that use is newly asserted.
The physical characteristics of the land at the time the easement was created can inform how ambiguous terms are interpreted. The dimensions of the passageway, its physical relationship to both properties, and the practical context in which the right was intended to operate all form part of the picture.
Courts do not read the words of an easement in isolation. They look at the surrounding circumstances to understand what the instrument was intended to achieve, and they interpret scope accordingly.
Using the Right of Way
A registered right of way cannot be extinguished simply by non-use. But if access is blocked and that position is accepted over time, it can affect how a court later interprets the scope of the right. If your right of way is being interfered with, acting on it rather than accommodating the interference is generally the better course.
Where This Leaves Us
Understanding what a right of way actually covers requires more than finding a document. It requires examining the purpose behind the right, the history of how it has been used, the physical context in which it operates, and how a court would be likely to interpret its scope in light of all of those things.
That analysis matters because it shapes what follows: whether a neighbour’s conduct amounts to an obstruction, what remedies might be available, and what the most practical path forward looks like.
Part two looks at exactly that: what options are available when a right of way is being interfered with, including where the facts are borderline and the instrument alone does not give a clear answer.
If this sounds familiar
Access disputes often begin quietly and escalate when the underlying legal question goes unexamined. If you have questions about what a right of way on your title actually covers, early advice usually produces better outcomes and more options than waiting until positions have hardened.
