Ash Street Properties Pty Ltd v Pollnow

Ash Street Properties Pty Ltd and others (the appellants) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning a dispute over a right of way. The respondents, Pollnow and others, were the owners of land that was subject to the right of way, which the appellants, as owners of the dominant tenement, sought to enforce.

The primary legal issue before the Court of Appeal was whether the right of way, granted by a registered transfer in 1974, had been extinguished by the appellants' actions. Specifically, the court had to determine if the appellants had substantially interfered with or obstructed the right of way in a manner that was inconsistent with its continued existence, thereby causing its extinguishment.

The Court of Appeal, in its reasoning, applied the principle that a right of way can be extinguished by the actions of the owner of the dominant tenement if those actions render the right of way incapable of enjoyment or substantially inconsistent with its continued exercise. The court found that the appellants' construction of a building that encroached upon the right of way, and their subsequent use of that encroached area, constituted a substantial interference. This interference was deemed to be so significant that it effectively prevented the respondents from enjoying the full benefit of the right of way as it was originally granted. Consequently, the court held that the right of way had been extinguished by unity of possession and use, as the appellants, by their actions, had effectively absorbed the servient land into their dominant tenement in a manner inconsistent with the existence of the easement.

The Court of Appeal allowed the appeal, setting aside the orders of the Supreme Court and declaring that the right of way had been extinguished.