Neighbours behaving badly

"Most Australians live in proximity to their neighbours. That proximity will require, from time to time, a degree of give and take, tolerance and common sense to ensure peaceful co-existence. When those qualities are absent, disputes between neighbours can quickly grow out of all proportion. This case is an unfortunate example of that phenomenon".

These words are the opening statement of Justice Kunc delivering his (at times scathing) judgement in Au V Berlach [2022] NSWSC 81.

Dr Au owned land which was subject to an easement, and the Berlachs had a right of way in their favour to use the easement. The easement was very clear and gave the Berlachs significant rights in relation to access and use.

Dr Au sought declarations and injunctions limiting the Berlachs' use of the easement, including restricting their use of leaf blowers, requesting that the Berlachs must never breach the boundaries of the easement, and prohibiting the Berlachs from pruning foliage along the easement unless performed by a professional. Moreover, one of Dr Au's many complaints was that the Berlach children should not use the driveway to ride their bikes. The defendants sought a number of counterclaims involving the use of surveillance cameras by Mr Au (17 cameras in total), and enforcing restrictive covenants around the fencing and signage erected by Dr Au which were required to be in an Australian colonial style.

When considering the scope of the easement and Dr Au's claims, Kunc J stated "it is plain beyond doubt that the Easement is drawn in the widest possible terms in favour of the Berlach property. It confers a right of “way”, and “use” and “passage”, “at all times” and “for all purposes” to the benefit of the proprietor of the Berlach property. It is difficult to conceive of a more widely drawn easement".

Mr Au's claim's were dismissed and some of the Berlach's counterclaims were upheld. Importantly, Kunc J stated that the Berlachs being filmed by CCTV, and Mr Au posting these publicly was a violation of the Berlach's property rights. Kunc J however, only ordered the removal of cameras so as to 'abate the nuisance'. In short, some cameras are acceptable on your own property but 17 is excessive. Mr Au was also asked to remove fencing that was not in the Australian colonial style (as per the restrictive covenant).

At the core of the dispute were:

(a) a profound lack of understanding of easement law;

(b) lack of common sense and reasonability; and

(c) a failure by Dr Au to take his lawyer's advice.

Dr Au was ordered to pay the Berlach's costs.

TAKEAWAY: Be reasonable, consider the scope of your easement and take the advice of professionals. Additionally, if you want to install signage or CCTV, consider whether this might be interfering with another person's enjoyment of their property rights.