WA Right of carriageway Levels and Responsibilities

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Jamie111

Member
5 May 2017
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I own a strata lot in which a few of us are currently building on. On both my own and my neighbors lot we have garages which will essentially be side by side but separate structures and abutting a retaining wall (170mm difference in height between property currently). On my land I have common property (which extends in front of my neighbors garage) as a right of carriageway in which I cannot build so that my neighbor use to reverse his car. My neighbor submitted plans to me last year in which I noticed he wanted to cut his land approximately 200mm making the difference between properties around 370mm. I discussed this with him and explained that a retaining wall would be required on the common property which would obstruct both of our vehicle paths into our garages. At this point he agreed in an email that he would raise his garage level to my slab level so there was no level issues on the common property. 1 year later he is currently in construction and has obviously ignored our agreement as the difference in height is 400mm between properties.

Given my responsibility is to provide a right of carriageway, is it my responsibility to ensure the common property levels are suitable for my neighbor to reverse his vehicle even though he adjusted levels? In this case a retaining wall isn't exactly suitable as it would create an obstruction. Do I have the right to ask my neighbor to lift his slab as previously agreed?
 

Gorodetsky

Well-Known Member
21 February 2016
146
35
519
Hi jamie111,
I'm not a Solicitor, ok?
And I'm not quite clear on your exact situation...and I don't know anything about strata or common land....but can offer these thoughts...

Easements/carriageways practically never required the burdened party (pretty sure that's you) to "do" something....they typically require you "not to do" something. Like block a driveway. So if this guy blocks his own carriageway off, it's not your responsibility fix it or to do anything.

Also, the "burden" cannot be such that the burdened party (you I think) is excluded from their own land (that is ownership, not carriageway)....sure you're excluded while they drive across, but they cannot prevent you from also using that land. You 'own' it. He's just got the right to drive across it.

Ancillary rights. The benefitted party can do "what's reasonably required" in order to use the easement...like fix potholes, or even rebuild or upgrade the driveway if that's reasonable....but the way you describe what he's done doesn't sound reasonable. Of course you are probly biased. Everyone who posts in this forum seem to be biased. So what he's done might be reasonable.

Regards
Gorodetsky
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
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Keep all plans and correspondence over who did what. You may need them in future if there is a dispute either with this neighbour or his successors.
 

Tripe

Well-Known Member
22 May 2017
229
14
619
Their are further implied rights to a right of carriage such as the right to maintain the easment surface and also the right to enjoy the easments without injury.

In my view your neighbour has unfetted right to pass over the burdened land ie your driveway in a safe manner

In my view, your neighbor would have the implied right to make access to your driveway safe by constructing a reasonable graded approach that would still allow access to your drive way, but it would be at his expense, however he would not be able to damage your property, or effect your right of reasonable enjoyment of your property, ie access your garage.

There obviously comes a point where the change in level heights in garages is to great to achieve an outcome that still gives you reasonable access to your garage