Burke v Frasers Lorne Pty Ltd

In the case of Burke v Frasers Lorne Pty Ltd, the dispute arose between the plaintiff, who owns a residential property, and the defendant, a property developer, regarding the maintenance and surface of a carriageway that serves the plaintiff's property. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant, without consent, had replaced the asphalt surface of the carriageway with reinforced turf, which the plaintiff claimed was an inferior surface and could potentially hinder access to his property.

The primary legal issues before the court were whether the servient owner could unilaterally change the surface of the right of carriageway and, if so, whether the change to reinforced turf constituted a "psychological obstruction". The court was also required to decide whether the plaintiff had established a strongly arguable case for an interlocutory mandatory injunction to compel the defendant to return the surface of the carriageway to asphalt.

In delivering the judgment, the court found that while the reinforced turf could provide reasonable access to the plaintiff's property, the existing asphalt surface was a reasonable user of the right of carriageway. The court held that the servient owner did not have the unilateral right to change the surface of the carriageway. Furthermore, the court determined that the plaintiff had established a strongly arguable case for the injunction. The court also noted that it should attempt to settle questions of law on interlocutory applications when possible and considered the balance of convenience in its decision-making.

The court ordered that the defendant was to restore the surface of the carriageway to its previous asphalt condition. The court also noted that the potential slipperiness of the reinforced turf when wet and the recommendation that it not be used for a growing season amounted to a "psychological obstruction".