NSW Property Law - Crossing a Farmer's Field to the Beach?

Discussion in 'Property Law Forum' started by Nellybelly, 13 February 2018.

  1. Nellybelly

    Nellybelly Member

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    Would some one be able to clarify if this is a case for Law of Prescription?

    A street of neighbours have properties that back onto a farm. For over 30 years the neighbours have been crossing the farmers field to reach the beach on the bottom of the headland.

    There have been no fences. The beach is a public beach. There is beach access via a crown landtrack that is about 600m further along the road.

    Recently the farmer has erected fences preventing access across his land to the beach. Would the residents have a case for Law of Prescription in property law?

    Many thanks.
     
  2. Rod

    Rod Well-Known Member

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    You mean easement by prescription. At face value - quite possibly.
     
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  3. Clancy

    Clancy Well-Known Member

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    I do not think people taking short cuts despite proper access is already provided, equals a easement by prescription.
     
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  4. Tim W

    Tim W Lawyer
    LawTap Verified Lawyer

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    As a general principle, a landholder can, and is sometimes required to, fence their land.
    That said, it's one thing to build a fence, but if a fence impacts on
    another person's rights in other land, such as by "landlocking" a lot,
    then an easement may be in play.

    However, mere inconvenience caused by the legitimate exercise
    of a landholder's right to fence their land, with that land
    actually being otherwise reasonably accessible
    , may not create an easement.

    You may find this helpful.
     
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  5. Rod

    Rod Well-Known Member

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    Right of way is potentially in play: Fernance v Simpson relying on Megarry & Wade. And Ross Bilton & Ors v Georgia Ligdas [2016] NSWSC 1262 for a later case.

    I note there are insufficient facts to know one way or the other.
     
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  6. Tripe

    Tripe Well-Known Member

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    If your property joins the farmers land, then he has erected a boundary fence, he can’t erect this fence without discussing it with the adjoining neighbours.

    In saying that, a farmer has the right to keep his land and stock enclosed
     
  7. Rod

    Rod Well-Known Member

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    Tell the farmer you'll pay for gates.
     
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