When Property Rights Are Ignored

Competing rights between a dominant and servient tenement

Disputes between neighbouring landowners can quickly escalate, particularly where legal access rights are ignored or interfered with. A recent New South Wales Court of Appeal decision highlights how important it is to obtain early legal advice when property rights are at risk.

In FitzGerald v Foxes Lane (NSW) Pty Ltd, the Court considered whether farming activities carried out over a registered right of carriageway unlawfully interfered with a landowner’s legal rights

The Issue: Interference With a Right of Carriageway

A right of carriageway is a legally protected easement that allows the owner of one property to pass and repass over neighbouring land. In this case, the landowner with the benefit of the easement relied on it for vehicle access to rural land. In this case the neighbouring landowner began cropping over the carriageway, using heavy machinery that created deep tramlines, obscured the access route, restricted vehicle movement and caused damage to vehicles. Despite ongoing objections, the interference continued.

The dispute ultimately required court intervention.

What the Court Decided

The NSW Court of Appeal confirmed that:

• A landowner cannot use their land in a way that substantially interferes with a neighbour’s legal right of access;
• Cropping activities that create deep ruts, limit vehicle access and reduce safety can amount to unlawful interference, even in a rural context;
• Economic convenience does not override legally registered property rights; and
• Courts may grant injunctive relief to restrain ongoing interference and regulate future use of land

The Court restrained the offending conduct, clarified how the carriageway could be used, and confirmed the dominant owner’s right to carry out limited maintenance works to restore safe access.

Why This Case Matters for Property Owners

This decision is a reminder that property rights including easements and rights of way are enforceable. Whether the interference arises from farming, construction, development or neighbouring land use, courts will intervene where legal access is compromised.

Importantly, disputes of this kind often become more costly and complex when left unresolved.

Early legal advice can help:

• Clarify your rights and obligations
• Prevent escalation into prolonged litigation
• Secure practical remedies such as injunctions or negotiated outcomes
• Protect the long-term value and usability of your land

How We Can Assist

We regularly advise property owners, landowners and businesses in disputes involving:

• Easements and rights of carriageway
• Interference with access or land use
• Injunctive relief and urgent court applications
• Property-related nuisance and trespass claims
• Strategic resolution of neighbour disputes

Our approach is practical, commercially minded and focused on achieving effective commercial and legal outcomes whether through negotiation or court proceedings.

Speak with our experienced team

If your access rights are being interfered with or you are involved in a land use dispute, obtaining timely legal advice is critical. We can assess your position, explain your options clearly and act decisively to protect your rights.