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In the recent case of Hare v Van Brugge  NSWCA 74, the Van Brugge’s and the Hare’s were neighbours who lived in adjoining properties in Seaforth on Sydney’s Northern Beaches. The two properties in question were built on a steep slope that ran down to Middle Harbour.
Both properties could both be accessed from the street by way of either stairs or an “inclinator”. The inclinator was installed on the Hare property prior to the Hares’ ownership of it. In 1980, an easement was created over the inclinator in favour of the owner of the Van Brugge property. This easement gave the owner of the Van Brugge property the right to access and to “travel over” the Hare property in order to use the inclinator to and from the Van Brugge property and the Street. So, the Hare property was burdened by the easement, and the Van Brugge property was benefitted by it.
The Hares and Van Brugges had been neighbours without disagreement for some 20 years until 2011, when the Hares tried to stop the Van Brugges from using the inclinator.
The Supreme Court upheld the Van Brugges’ right to use the inclinator according to the terms of the easement. In addition, the court confirmed a set of “protocols” for the use and maintenance of the inclinator, which the parties were ordered to observe. The Hares appealed this judgment.
The Court of Appeal, considered the physical dimensions and characteristics of the 2 properties highlighting their relevance in deciding the dispute.
The Court found it most relevant that the easement site (ie. the space occupied by the inclinator “track(s)”on the Hare’s property) could only be travelled over by the Van Brugges by means of the inclinator and not otherwise. Further, the Court noted that the inclinator was a “fixture” and so formed a part of the land owned by the Hares.
Ultimately, the Court found that the parties were required by the terms of the easement to confine their use of the inclinator to “reasonable use” –This “reasonable use” test did not serve to prevent one party from using the inclinator at all, and did not mean that a party could use it only where such use caused no inconvenience to the other party.
The Court found that both the Van Brugges and the Hares had the right to maintain and repair the inclinator at their own expense equally. Likewise, both parties were free, the Court found, to refrain from maintaining the inclinator and to allow it to fall apart – if they so wished.
The “protocols” for the use and maintenance of the inclinator, were found to have been substantially agreed to by the parties as an accurate reflection of their respective wishes when the inclinator was installed. The Court did, however, remove from the protocol the requirement that the Hares maintain the supply of power to the inclinator.