In the recent Supreme Court case of Pullen v Smedley, the court was asked to take a close look at the rights and obligations of rural landholders affected by easements.
Pullen had a particular type of easement known as a right of way across Smedley’s farm. It was Pullen’s only way of accessing the main road. Along the right of way there were five sets of gates designed to allow cattle to be rotationally grazed around Smedley’s farm.
A dispute arose because Smedley wanted the gates to be kept shut, whereas Pullen wanted them open so he didn’t have to get in and out of the car ten times before he hit the main road.
As is often the case the neighborly relationship broke down and a number of other issues were raised. Pullen complained about the Smedley’s cattle grazing the right of way and Smedley complained about Pullen constructing a gravel road along it without approval and using fill containing asbestos.
The court, after considering the issues, sided mostly with Smedley, holding that:
- It was a trespass for Pullen to construct a substandard road without approval and the dumping of asbestos constituted an offence under environmental legislation.
- The fact that Smedley’s cattle grazed and crossed the right of way was not an actionable interference, so the grazing could continue.
- Neither the presence of the gates along the right of way, nor the insistence that they be kept shut, constituted any real or substantial interference with Pullen’s use of the right of way.
Accordingly, like many before them, Pullen was sternly ordered to ‘leave the gate as you found it.’
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