Part 1 of this series looked at what a right of way is, how its scope is defined by the registered instrument, and what obstruction means legally. This part looks at what happens when enforcement is not as clear as it should be.
The Problem Most People Run Into
You know you have a right of way. You can see it on your title. But the interference is not a complete blockage. It is a structure that makes things awkward, or a partial obstruction that creates real inconvenience without technically preventing access altogether. The registered instrument may be ambiguous. The neighbour disputes the scope.
Going directly to litigation on a borderline factual position is rarely the right first move. The more useful question is what other options are available on the particular facts.
Private Nuisance
Private nuisance is often the most natural companion claim in these disputes, and the one most people don’t think to ask about.
Where an obstruction causes substantial and unreasonable interference with the enjoyment of your property, a claim in private nuisance may be available even if the obstruction does not clearly breach the terms of the right of way. Nuisance does not depend on establishing the precise scope of the registered easement. That makes it a genuinely useful alternative, or a parallel argument, where the instrument is ambiguous or the facts are borderline.
In the matter I referred to in Part 1, the nuisance angle was live precisely because the right of way question was not straightforward. The interference with how the property could be used was real, regardless of how the instrument was ultimately interpreted.
Council and Planning Enforcement
Where a structure has been erected recently and without development consent, there may be a planning enforcement pathway via council. This does not resolve the underlying property rights question, but it can address the immediate physical problem without requiring you to commence private litigation.
It is an option that tends to be overlooked early in these disputes. In some cases it is the most practical first step.
Negotiated Resolution
A negotiated licence or deed of variation is often the most practical outcome.
If the right of way is uncertain in scope, formalising what should happen through a negotiated instrument can give both parties clarity and remove the uncertainty that is driving the dispute. It avoids litigation costs and, in most cases, preserves whatever relationship remains between the neighbours.
This is worth considering early, not as a concession, but as a way of converting an uncertain right into a certain one.
Court Proceedings
Where other options have not resolved the matter, court proceedings may be available. The Supreme Court of NSW can grant an injunction to prevent ongoing interference and can make a mandatory order requiring the removal of a structure already in place. It can also award damages, including in circumstances where a mandatory injunction is refused on hardship grounds.
Understanding what these remedies require, and what they are likely to cost, is part of making an informed decision about whether litigation is the right path on the particular facts.
What If the Right of Way Is Narrower Than You Thought?
Sometimes a dispute reveals that the right of way does not cover what the person relying on it assumed. Perhaps the instrument only permits pedestrian access, but the property has been using it for vehicles. Perhaps the defined area does not extend as far as believed.
This does not necessarily mean there is no remedy, but it changes the nature of the claim. In some cases, long and unchallenged use of land in a particular way can give rise to other legal arguments, though these have their own requirements and limitations.
Understanding any weaknesses in your position early is as important as understanding your strengths. It shapes the strategy and, often, the outcome.
A Note on Title History
Rights of way affecting older properties can have complicated histories. In inner-city areas particularly, subdivisions and consolidations over many decades can leave behind easements that are difficult to interpret without tracing the title back to its origins.
In some cases, the instrument creating the right of way may predate the current Torrens title folios. In others, there may be questions about whether the right was validly created or properly recorded.
None of this is insurmountable, but it does mean that a right of way dispute is rarely resolved by checking a single document.
If this sounds familiar
Disputes involving rights of way often begin quietly, with a structure that appears, a gate that is locked, or a passage that gradually becomes harder to use. They tend to escalate when positions harden and the underlying legal question goes unexamined.
Early advice, before correspondence is exchanged or positions become fixed, usually produces better outcomes and more options. If you are dealing with an access dispute or have questions about what a right of way on your title actually covers, it is worth getting a clear picture of your position sooner rather than later.
