Trewin v Felton (No. 2)

In the case of Trewin v Felton (No. 2), the dispute arose between two property owners in relation to easement rights concerning a carriageway. The Full Court of the Federal Court of Australia was tasked with determining the obligations of the dominant tenement owner under the easement when seeking to change access points. Specifically, the court was required to decide whether the dominant owner was obligated to close existing access points with a fence consistent with the existing fencing when altering the access points.

The court examined the nature of the easement, which permitted the dominant tenement owner to access their property via the easement, but also allowed them to fence the area. The court found that the dominant owner had the right to change the access points but was also under an obligation to ensure that the existing access points were closed with a fence that matched the existing fencing. The court held that the easement did not allow the dominant owner to simply leave the existing access points open, but rather required them to take reasonable steps to secure the property by closing the access points with a fence consistent with the existing fencing. The court's decision was grounded in the principles of equity and the need to balance the rights of both parties.

The Full Court determined that the dominant owner's obligation to close existing access points with a fence consistent with the existing fencing was a reasonable and necessary condition to ensure the security of the property and to prevent any potential harm to the servient tenement. The court held that the dominant owner's failure to close the existing access points with a fence consistent with the existing fencing was a breach of their obligations under the easement. The court's decision was based on the principle that the dominant owner must take reasonable steps to ensure the security of the property while also respecting the rights of the servient tenement owner. The court's decision provides clarity on the obligations of dominant tenement owners when seeking to change access points under an easement and highlights the importance of taking reasonable steps to secure the property while respecting the rights of the servient tenement owner.