Protecting and enforcing rights of way
The owner of any property that enjoys a right of way must enforce it. Rights of way become vulnerable if unused, because they can become extinguished by long periods of abandonment. This is reflected in the mechanisms for enforcing a right of way – an equitable declaration or injunction – which require consideration of the balance of convenience and can be denied if the owner delays or acquiesces in enforcing the right. Owners must be assertive and vigilant in enforcing a right of way by regularly driving, cycling or walking over the land.
Rights of way are property rights. The Transfer of Land Act 1958 (Vic) s 72(3), sch 12 provides that the right allows its owner to “pass and repass at all times … for all purposes”. Rather than being enjoyed by a particular person, the right attaches to a particular parcel of land and can be enjoyed by whoever happens to own or occupy the land at a given time. As a result, these property rights can be extremely important and highly valuable. Sometimes they comprise access to a property or a part of it, such as a rear garden or garage. Moreover, the property to which a right of way is attached is likely improved in value because of that right.
Kellehers has been active in assisting with the protection and enforcement of rights of way. Sometimes it becomes necessary to record usage and also record instances where the right of way is obstructed or interfered with and to ensure that, during a planning application process, all parties acknowledge the existence of the right of way. In one case we prepared terms of agreement to control usage of a row during building works. Whilst legal issues regarding rights of way are generally kept separate from the planning process, we also considered the heritage significance of an old right of way within a heritage overlay.
It is important, should a dispute ever come to court, that there is clear evidence of the existence of a right of way and that the owner of the right of way maintains usage of it.
Freeman Zhong and Hubert Algie
21 December 2016