NSW Right of carriageway not situated on block where survey on land title has it placed.

[Krysia Lee]

We are the benefited block and bought the house with a legal carriageway on title. The owner of the other block has told us that he has had the block surveyed and the carriageway is in the wrong spot according to plans held at the land titles office, so we are no longer allowed to use it as our right of way. He is putting in a gate. We will have no possible way of getting to our house. Where he says the carriageway is supposed to be runs into an 2m embankment that can't be driven over. The current assess is 3m to the left and the only possible entry point on a very steep block. he will be keeping that assess to get his block and is there is no logical reason for his actions The two blocks are side by side.
So my question is after using the current assess since 1967, is he allowed to give us a carriageway that doesn't join the road and shut us out of our property?The current assess is the one on which the subdivision was approved but the easement seems to have been surveyed incorrectly.

 

[Rob Legat - SBPL]

You'll need a NSW property lawyer to properly assess the situation, including whether there has been any changes to the carriageway over time. If that doesn't sole your issue, you likely have a claim for adverse possession since it's been used continuously for 50 years.

 

[Rod]

I'd be suggesting to the other owner that unless he restores/maintains access then he may be liable for your legal costs.

If that doesn't work then see a lawyer. A lawyer may be able to get an easement by implication or by continuous use.

The advantage of an easement over adverse possession is that you don't have to show continuous possession, just continuous use. But either way it is not a DIY legal situation.

 

[Krysia Lee]

Thanks Rob, turns out it's been there since 1969. We today have had a surveyor look at it and he says the he thinks it's all where it should be, but the measurements on the surveyor fall 1-2m short of reaching the street.

On the drawing, it joins the street but he saying because the measurements stop the carriageway short of the street the last 1m we drive over we are not entitled to. I believe you are right and that it's a matter for the lawyers. I just don't understand if it doesn't join a street/road how it is a carriageway.

Doesn't a carriageway mean we can drive over it to the street not to some random spot on his block and back to our block?

 

[Rob Legat - SBPL]

If it's your only form of access to the roadway, I doubt that 1 - 2m will be out of bounds.

 

[Tripe]

Doesn't a carriageway mean we can drive over it to the street not to some random spot on his block and back to our block?

A right of carriage comes from the 1800’s when people literally had horses and carriage.

It’s a right to travel over or pass over someone else’s land, without it being a trespass.

Right of carriages are normally intended to prevent a land parcel from being landlocked.

You can travel anyway you want through an easement, (east, west, north, south ) but most of the time it’s to/from a public road.

IMHO, a court case, would not allow a property to be landlocked.