QLD Access and Easement Rights - Relocating Gate?

[Julie Cameron]

We have an access easement on our title for the front lot to gain access to their garage/property. This is fine and have no issue with providing access, however we are looking to relocate the front security gate to further down the driveway to allow for full fencing of the back property/house for child safety reasons.

The front lot owner does not want us to relocate the gate or place an new fence further down. They will have access through this gate at any time to gain any services if required. We are complying with the easement requirement. Is this acceptable as the gate is ours and there will no restrictions to any area of the easements with this new change?

In addition, the concerns is also that the security gate will not be at the front, so it will open the easement area up to street access, are we required to provide security to this joint area or, as the land is solely ours, are we able to make any amendments we require as long as the underlining purpose of the easement (access) is not affected.

Thanks

 

[Tripe]

Not quite sure of your location, is it a residential area?

 

[Julie Cameron]

yes its residential property.

 

[Rob Legat - SBPL]

There’s no way to be able to tell without a consideration of the full terms of grant of the easement. Anything else is guesswork.

 

[Julie Cameron]

There’s no way to be able to tell without a consideration of the full terms of grant of the easement. Anything else is guesswork.

i have an copy of the easement and it doesnt state anything about security or fencing. just that access needs to be provided, which they have an gate remote to gain access whenever needed.

 

[Tripe]

Your land is burdened and you or a previous owner was paid a fee for another property owner to use your land.

You can’t obstruct the easment in any form and in a residential situation, gates are not normally allowed, unless the dominant title holder agrees.

If you put the gates in, don’t be surprised to find it ripped out by the dominant title holder.

In a rural situations, there is case law that allows gates on an easment to stop stock losses

 

[Julie Cameron]

even if wr currently have an gate on the property and all parties have remotes to use the gate, why would it now be an issue to just relocate the gate to stop an child running out onto the road or being possible run over by other cars in the easement? no restrictions will be in place and the other party can still use the easement area to gain access?

 

[Tripe]

Your land is burdened, you are a servient title holder, the neighbour is the dominant title holder.

A gate on a residential easement is most likely an actionable nuisance, but in a country area to main stock its would be considered reasonable

if you can't talk to the neighbour about the change and get them to agree, then start hiring lawyers or buy the easement out.