I own shares in a company which owns land upon which shareholders reside (a multiple occupancy property). There is gated access to our private road. We have granted right of access to another property which would otherwise be landlocked. The owners of the other property now have several children riding mini bikes, dirt bikes and quad bikes along our road all day. Is this legal and what can we do stop them ?
Depends on the terms of the right of access (called an easement). If it’s worded in the usual manner, it’s probably allowable. You might have to look at a nuisance claim if the use and noise is excessive.
Thanks for your reply Rob Legat,
There was a crown road closed to provide this easement. It states ”Right of Carriageway over track in use”
Presumably this is standard wording, and if I wished to pursue the matter a nuisance claim would be necessary.
What concerns me is very young children riding motorcycles on our property. Are they allowed to do that ?
There was a crown road closed to provide this easement. It states ”Right of Carriageway over track in use”
Presumably this is standard wording, and if I wished to pursue the matter a nuisance claim would be necessary.
What concerns me is very young children riding motorcycles on our property. Are they allowed to do that ?
No. And easement is only for access, not for playing around. Must only use easement to get to and from property, not use it as a theme park ride on track.
Firstly, check to see whether the area of road is actually part of your lot or still crown reserve. This may change the outcome. Given you've stated that the right of access was granted by your lot, I'm going to assume the land has been amalgamated into your lot.
When I said it depends on the terms of the right of access, to grant an easement a document must be registered which links the two lots: yours as the 'burdened' lot (called the 'servient tenement') and theirs as the benefited lot (called the dominant tenement). The grant does not give total rights to the use of the defined area to the dominant tenement. It only gives the rights stated in the grant document, and those are given subject to any conditions. For example:
- Granting the right of access between the lot and the roadway does not automatically allow the parking of vehicles on the easement;
- A right of access doesn't allow storage of items or building of structures - but it often does allow the construction of roadway;
- A right of access could be just for pedestrian traffic, which would mean motorised vehicles can't be used; or
- It could have limited hours or days for use (unlikely in this case, especially if it is the only means of access).
In terms of liability for accident and damage, that's a whole other issue. From your point of view, I'd be seeing whether the easement requires you to provide/maintain a roadway. If so, it best be to the standard required by the easement or you may wear some liability. Onwards from there, it's not my area of expertise so you'd be best off getting some comments from someone else.
When I said it depends on the terms of the right of access, to grant an easement a document must be registered which links the two lots: yours as the 'burdened' lot (called the 'servient tenement') and theirs as the benefited lot (called the dominant tenement). The grant does not give total rights to the use of the defined area to the dominant tenement. It only gives the rights stated in the grant document, and those are given subject to any conditions. For example:
- Granting the right of access between the lot and the roadway does not automatically allow the parking of vehicles on the easement;
- A right of access doesn't allow storage of items or building of structures - but it often does allow the construction of roadway;
- A right of access could be just for pedestrian traffic, which would mean motorised vehicles can't be used; or
- It could have limited hours or days for use (unlikely in this case, especially if it is the only means of access).
In terms of liability for accident and damage, that's a whole other issue. From your point of view, I'd be seeing whether the easement requires you to provide/maintain a roadway. If so, it best be to the standard required by the easement or you may wear some liability. Onwards from there, it's not my area of expertise so you'd be best off getting some comments from someone else.
Thanks again Rob.
There is a deed which was prepared by the dominant tenements legal representative. They paid for most of legal costs associated with closure of the crown road. They also pay a sum of $250 pa (indexed) to contribute towards maitenance of the road to local govt standards, which we do. It has been my concern that a child could hit a pot hole and be injured.
I just don’t understand why a child should be riding on our road if they can’t legally ride once outside the gate?
There is a deed which was prepared by the dominant tenements legal representative. They paid for most of legal costs associated with closure of the crown road. They also pay a sum of $250 pa (indexed) to contribute towards maitenance of the road to local govt standards, which we do. It has been my concern that a child could hit a pot hole and be injured.
I just don’t understand why a child should be riding on our road if they can’t legally ride once outside the gate?
Okay, then it would seem you have a problem.
1. The land isn't dedicated road or public space, so it is private property. You don't need a licence or road registration to ride on private property.
2. If they contribute towards maintenance, and you ensure it is to local government standards, then you have the obligation of maintenance if a 'child hits a pot hole' your company could (and most probably, would) be liable to an extent.
3. Depending on an examination of what is allowed under the terms of easement, you may have little to no power to stop the use of the easement in the manner in which it is being used.
I suggest you do the following:
- Get a solicitor who practices in NSW to review the terms of the easement specifically with respect to the manner in which it is being used; and
- Make sure your insurance specifically covers you for liability. That is not DIY - get a broker, fully explain to them the situation and make sure you have sufficient coverage. Insurance companies are not your friend and will deny liability at any opportunity to do so.
1. The land isn't dedicated road or public space, so it is private property. You don't need a licence or road registration to ride on private property.
2. If they contribute towards maintenance, and you ensure it is to local government standards, then you have the obligation of maintenance if a 'child hits a pot hole' your company could (and most probably, would) be liable to an extent.
3. Depending on an examination of what is allowed under the terms of easement, you may have little to no power to stop the use of the easement in the manner in which it is being used.
I suggest you do the following:
- Get a solicitor who practices in NSW to review the terms of the easement specifically with respect to the manner in which it is being used; and
- Make sure your insurance specifically covers you for liability. That is not DIY - get a broker, fully explain to them the situation and make sure you have sufficient coverage. Insurance companies are not your friend and will deny liability at any opportunity to do so.
You’ve been so helpful, thank you again.
I’ll discuss with other members and see where we go.
Stay safe 🙏