NSW Extinquishing a Right of Carriageway

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Angel64

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1 September 2020
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There is 2 burdened/servient blocks for a right of carriage way that services a battleaxe block of 6 houses (180-180A-E Home Dr) However, a block that ISN'T part of the battleaxe blocks, but the property (176 Home Dr) borders the PRIVATE RD used for the 6 blocks, was given right of carriageway (roc) on our Private Rd. This property has its own legal access to the property from the main rd that our road runs off. He is now abusing the roc & wants to build a 17.5mtr x 7mtr shed for the purpose of using it for his "home business", then use our Rd to access it. Also Ingressing across the 2 burdened lots.
HOW CAN WE STOP THIS HAPPENING?
 

Tim W

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You engage a lawyer.
This is not a DIY.
 

Rob Legat - SBPL

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So, boiling this down: a lot which has been granted a right of access via an easement wants to use the easement to access their property? If that’s correct, I fail to see how it could be characterised as ‘abuse’. The person would be actually using their granted right for the purpose for which it was granted. Or, am I missing something?

If it causes you concern, there may be more utility in looking to whether they can actually operate that business from their home. Depending on the nature of it, it may require Council approval and potentially a development application. That process may give you scope for an objection on the basis of the impact it will likely have on your use and enjoyment of your properties. But, as Tim commented, probably not a DIY situation. You could try a local community legal centre.
 

Angel64

Active Member
1 September 2020
5
0
31
NSW
So, boiling this down: a lot which has been granted a right of access via an easement wants to use the easement to access their property? If that’s correct, I fail to see how it could be characterised as ‘abuse’. The person would be actually using their granted right for the purpose for which it was granted. Or, am I missing something?

If it causes you concern, there may be more utility in looking to whether they can actually operate that business from their home. Depending on the nature of it, it may require Council approval and potentially a development application. That process may give you scope for an objection on the basis of the impact it will likely have on your use and enjoyment of your properties. But, as Tim commented, probably not a DIY situation. You could try a local community legal centre.
Thank you for responding, I understand what you're saying, but this person's block isn't landlocked, he has access to all parts of his block from his own driveway. why is there an RoC in the first place. If for work on the initial building of the house etc., why wasn't it released at the completion of the work? There are no markings/symbols on that lot, on the maps in the DP, showing RoC for that block, where as it does for all 6 houses of 180-180A-E. There are no markings showing the path of use thru the other peoples land either! He can therefore drive anywhere across the land!
The business involves house staging & they want to warehouse all the different furniture & furnishings etc. in the shed & use the road & the easement across 2 peoples land as access to it for the trucks etc.
There is a DA going thru, but Council seems to be massaging the LEPs to let them have the shed, even though the LEP says no more than 40m2 floor space to be used for the business. Yeah right!! The shed has 122+m2 floor space, how do they police that usage?!
Thank you again for your advise & time.
Cheers
Angel
 

Rob Legat - SBPL

Lawyer
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In terms of the easement questions:
- Why? No idea. Could be any reason, and likely irrelevant now. It doesn't matter whether they have other access - what matters is that they have been given access.
- Doubtful it was given just for the building of the house. Easements don't lend themselves to short term solutions given their nature. It's possible the road they can use wasn't there at the time - but that's an unfounded guess.
- Are you sure there is an easement in place which they get the benefit of? I'm speaking from a Queensland perspective, but the title for the lot on which the easement is physically located will state what properties have the rights to the use of the easement. NSW may be different - hopefully someone south of the border to me can fill that in.

In terms of the business:
- Put in a complaint. Not just on the area usage but also on the very likely fact that they are going to have large trucks coming and going. They are likely to be running in a manner akin to a storage facility - which is a somewhat different proposition to a 'home office'.
 

Angel64

Active Member
1 September 2020
5
0
31
NSW
Yes that was my argument to council in a way. I said that other than the floor space issue, their actual place of work is other peoples homes, not the shed. They were using the shed as a warehouse & distribution centre to their true place of work when required; other peoples homes!! They have it stored in numerous other storage sheds now & want to incorporate all to one location. There goes that 40m2 floor space use as well!! This should be in IN1 area, not R5 Large Residential!
Thanks again for your advice & time, the reason for the RoC for that property has baffled us for years.
Cheers
Angel