A recent case in the Victorian Civil and Administrative Tribunal (VCAT) demonstrates the difficulties involved in removing an easement over the objections of the party with the benefit of the easement.
The case was Wheelhouse v Maribyrnong CC  VCAT 1171, in which the Victorian Civil and Administrative Tribunal rejected an application by Wheelhouse to remove a ~24m by .9m walkway down the side of Wheelhouse’s home to Georgiadis’ home to the rear.
Wheelhouse was upset that Georgiadis, his visitors and guests, could see into his house as they walked down the pathway, amongst other things.
He argued Georgiadis had alternative access down a laneway to the rear.
The Tribunal applied the principles in KJ Barge & Associates v City of Prahran (1992) 10 AATR 345 asking:
1. Does the current use of or the current state or condition of the dominant and servient lands (tenements) indicate a need or requirement for the continued existence of the easement?
2. Would the owners of the dominant land (Georgiadis) suffer any material detriment in their use and enjoyment of the land if the easement was removed or varied?
The Tribunal noted the convenience that the easement provides to Georgiadis, and that removal of the easement would add time and distance to the pedestrian route to nearby Footscray:
“It is not uncommon for residential properties to have more than one access point and the mere fact that there are two access points to a site does not of itself mean that both access points are not needed.
The parties have different views as to whether the easement is needed for the purposes of mail and parcel delivery, waste collection, pedestrian access and emergency access.
Ultimately, these differences are not material to my decision in this proceeding… the current use, state and condition of the dominant and servient land indicates the easement is needed…
I consider the loss of this convenient, direct pedestrian access to Cowper Street would result in a material detriment to the use and enjoyment of No. 2/113 Cowper Street. In my view, this means that the need served by the easement is a real and ongoing one. For this reason, I do not consider it appropriate to grant a planning permit which would remove the easement.”
This case is a reminder that easements are property rights that the Tribunal will not lightly remove over the objections of the party with the benefit of the easement. Where easements are to be removed, this is best achieved by negotiation and agreement.
It’s also a reminder why people should study a section 32 agreement carefully and take advice about the consequences of easements and restrictive covenants, before a purchase of land is made.