A registered right of way tells you who has access. Whether it tells you who is responsible for maintenance depends on when it was created and how carefully it was drafted. Older instruments (and there are many still on title in NSW) frequently say nothing on the subject at all. More recent ones are more likely to include a maintenance provision, but even then, general language about keeping the way “in good repair” can leave significant room for dispute when the costs are real and the relationship is under strain.
When the instrument is silent, or where what it says doesn’t resolve the question, NSW courts will look to the general law — and what it requires of each party is not always obvious.
The arrangement that worked, until it didn't
My client owned a property at the end of a cul-de-sac. The land sat below street level. So did the neighbour’s lot next door. Both properties collected water runoff from the surrounding area in heavy rain. The only vehicle access to both lots ran down a shared driveway. My client owned the land the driveway crossed. The neighbour had a registered right of way over it.
The understanding around general use was clear and uncontroversial – but the instrument did not include anything about maintenance.
In the early years, this didn’t matter. The driveway needed occasional attention and my client simply handled it — small costs, minimal effort, no conversation required. The relationship between the neighbours was easy and the maintenance burden didn’t feel problematically disproportionate.
Then the weather changed. Heavier rain events became more frequent. Because both properties sat at a natural low point, water from the surrounding area drained straight down onto the driveway with each significant event. The damage was no longer minor, and it was cumulative. The surface deteriorated between events faster than it could be properly repaired.
The maintenance burden was also higher than it would have been for a purely private driveway. The right of way meant the surface carried traffic from two households, not one — deliveries, visitors, daily use — all of it wearing on a driveway that was already fighting a drainage problem.
The costs started to climb. My client raised the question of shared contribution with the neighbour. The neighbour’s position was straightforward: he had a registered right to use the driveway but it was my client’s land – they should maintain it.
Neither of them was being unreasonable. The instrument simply didn’t say.
The general law
Where the instrument is silent — or where its terms don’t resolve the specific dispute — the general law fills the gap.
The starting point is the distinction between the dominant owner and the servient owner. The dominant owner holds the benefit of the right of way — in this case, the neighbour with access rights. The servient owner holds the burden — in this case, my client, whose land the driveway crossed.
Under the general law, the dominant owner has the right to enter the servient land and carry out maintenance work to keep the right of way in a useable condition. But this is a right, not an obligation. There is no general law rule that compels the dominant owner to maintain the way, contribute to repairs, or share costs with the servient owner.
The servient owner, for their part, is not required to maintain the right of way in good condition for the dominant owner’s benefit. The burden of the easement is to allow access — not to fund it.
What this can mean in practice: often neither party has a clear legal obligation to maintain the driveway, and neither has a clear legal entitlement to compel the other to contribute. The person who has been maintaining it out of practical necessity — typically the servient owner, whose land it sits on — has no obvious mechanism for recovering a contribution from the person benefiting from the access.
This position can be modified by the instrument itself, by a separate agreement between the parties, or in some cases by the conduct of the parties over time. But where none of those exist, the general law leaves a gap that can become very expensive.
How the dispute developed
By the time my client came to me, the driveway had deteriorated significantly and the relationship had deteriorated with it. My client resented bearing costs that the neighbour’s use was directly contributing to. The neighbour, for his part, resented what he saw as delayed and inadequate repairs — he had a right to use the driveway and expected it to be in reasonable condition.
Both perspectives were understandable. Neither resolved the underlying problem.
There was no clean legal solution available. The instrument was silent. There was no written agreement. What my client had was a history of maintaining the driveway unilaterally, which if anything made it harder to argue that a sharing arrangement had been informally established.
The focus of my work became managing the immediate situation rather than resolving the structural problem. We were putting out fires. We did ultimately secure a contribution to the cost of a significant repair event — but it required negotiation and persistence, and it did not reflect anything like an equitable share of the maintenance burden my client had been carrying.
The relationship between the neighbours never fully recovered. The driveway issue had made explicit something that had always been implicit: the arrangement was unequal, and the instrument had not addressed that inequality at all.
The practical lesson: address maintenance before it becomes a dispute
The cost of clarifying a maintenance arrangement when things are good is low. The cost of resolving a maintenance dispute when things are bad — in legal fees, repair costs, and damaged relationships — is high.
If you own a property subject to a right of way, or a property that benefits from one, the question of maintenance responsibility is worth examining carefully at the point of purchase. Ask what the instrument says. If it says nothing, ask what arrangement — formal or informal — has been in place. Then ask whether that arrangement is something you are comfortable relying on.
If you are buying the servient land, you are acquiring both the burden of the access right and whatever maintenance arrangement has applied to it. If that arrangement has been informal or unresolved, you are also acquiring that problem.
If no arrangement exists, it is worth approaching the question directly while the relationship is new and the goodwill is intact. A short written agreement on maintenance responsibilities — who is responsible for what, how costs are shared, what happens when significant work is required — can be drafted without difficulty and without conflict when neither party has a grievance. It is much harder to negotiate when the driveway is failing and the bills are mounting.
A registered right of way gives the dominant owner access. It does not automatically give either party clarity about what keeping that access in good condition requires of them. That clarity needs to come from somewhere else — and the best time to establish it is before you need it.
If you are dealing with a right of way dispute or want advice on what your instrument actually provides, get in touch to discuss your situation.
