Pullen v Smedley

In the case of Pullen v Smedley, the dispute centred around the use of a right of way that crossed land owned by the defendants, Smedley. The plaintiffs, Pullen, argued that the defendants had interfered with their rights under the easement and that the defendants were liable to contribute to the costs of works on the right of way. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues for the court to determine were whether the easement implicitly precluded grazing of cattle by the servient tenement owner, the meaning of “all weather” access as a standard, and whether the dominant tenement owner was liable to contribute to the costs of works on the right of way. Additionally, the court needed to decide whether the installation of gates, the permitting of cattle grazing on the right of way, and the presence of a metal shipping container amounted to substantial interference with the rights of the dominant tenement owner. The court also needed to determine if the opening of gates along the right of way constituted an unreasonable use by the dominant tenement owner of the rights conferred by the easement. Finally, the court examined whether the defendants' works on the right of way were unlawful under the Wyong Local Environmental Plan 2013 and sections 76A of the Environmental Planning and Assessment Act 1979 (NSW) and 144 of the Protection of the Environment Operations Act 1997 (NSW).

The court found that the easement did not implicitly preclude grazing of cattle by the servient tenement owner. The term “all weather” access was not a standard that precluded the use of the right of way for any purpose, including grazing. The court held that the installation of gates, the permitting of cattle grazing, and the presence of the metal shipping container did not amount to substantial interference with the rights of the dominant tenement owner. However, the court did find that the opening of gates along the right of way constituted an unreasonable use by the dominant tenement owner. The court also concluded that the defendants' works on the right of way were not unlawful under the relevant planning and environmental legislation.

The court ordered the defendants to contribute to the cost of the works on the right of way, and it determined that the dominant tenement owner was liable for the costs associated with the unreasonable use of the right of way. The court did not find the defendants in breach of the relevant planning and environmental legislation.