Easement for Support Height Dispute: When a Neighbour Builds a Deck and Pavilion Above a Burdened Garage, How Does the Court Decide Whether the Dominant Owner’s Rights Are Vertically Limited?

Introduction (Mandatory Fixed Text) Based on the authentic Australian judicial case Thomas v Pearson [2025] NSWSC 1127, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales, Equity Division, Real Property List
Presiding Judge: Pike J
Cause of Action: Construction of easements; alleged nuisance by substantial interference with easement rights; requested declaratory and injunctive relief
Judgment Date: 2 October 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Easement for Support
Keyword 3: Right of Carriageway
Keyword 4: Substantial Interference
Keyword 5: Construction of Easements
Keyword 6: Neighbour Property Development

Background

Two adjoining owners in Cammeray, New South Wales, were tied together by an unusual property arrangement created decades earlier. The structure at the centre of the dispute was a double garage used by the Plaintiffs for garaging motor vehicles, but physically located on the Defendant’s land. The Plaintiffs relied on private property rights created by a registered Transfer, including a right of carriageway and an easement for support, to justify their continued use of that garage.

For many years, the area above the garage roof had been used by the occupiers of the Defendant’s land as outdoor space, with a fence and a deck forming part of a terrace-like area near a pool. When the Defendant later obtained development consent for works that included replacing decking and constructing a pavilion roof above that same area, the Plaintiffs asserted that these works would unlawfully interfere with the Plaintiffs’ easement rights. The dispute was not simply about neighbourly inconvenience. It was about the legal meaning and physical limits of a registered easement, and what a dominant owner can demand when the servient owner wants to build above a structure that the dominant owner uses.

Core Disputes and Claims

The Court was required to determine, in substance, the following core issues:

1. Construction Issue: Whether the Easement for Support and associated rights granted by the Transfer were limited in height by reference to the garage as it existed at the time of the grant, or whether the Plaintiffs’ rights were effectively unlimited vertically, allowing them to insist on keeping open the possibility of raising the garage roof in the future.

2. Interference Issue: Whether the existing fence and decking, and the proposed works under the development consent, amounted to a substantial interference with the Plaintiffs’ reasonable enjoyment of the easement rights, constituting an actionable nuisance.

The Plaintiffs sought declaratory relief and injunctions restraining the Defendant from proceeding with works said to interfere with the easement for support and the garage structure. They also sought orders requiring removal of the fence and decking and restricting the storage or placement of materials and items on the relevant area.

The Defendant resisted these claims, contending that the easement was not unlimited in height, that the Plaintiffs’ construction was incorrect, and that the claimed interference was not substantial.

Chapter 2: Origin of the Case

The relationship between the parties was not built on a negotiated agreement between neighbours. It was imposed by a subdivision-era Transfer and the physical realities of how a garage had been built and registered.

The Plaintiffs’ property and the Defendant’s property were carved out of a larger parcel of land in the late 1980s. The Plaintiff purchasers acquired their land under a contract that contemplated a subdivision plan and the creation of easements. Those easements were not ornamental legal drafting. They were intended to make the property functional, including by securing the continued use of a double garage in a location that sat within the neighbouring land.

What made the story combustible was what happened next. A garage was built, plans were amended, and the garage ended up with a flat concrete roof. Years later, owners of the Defendant’s land began to treat the roof area above the garage as part of their outdoor amenity. Fencing and decking appeared and, over time, evolved into a more established arrangement: a terrace-like space adjacent to a pool.

For decades, the arrangement remained largely unchallenged. The Plaintiffs knew that some form of decking and fencing existed above the garage, and that the fence had changed over time. Yet no formal demand was made for removal until long after the decking had become embedded in the physical use of the Defendant’s land.

The flashpoint arrived when the Defendant obtained development consent in September 2023 for further works above the garage, including replacement decking and a pavilion roof. The Defendant did not seek the Plaintiffs’ consent before lodging the development application. The Plaintiffs objected to the development application and then escalated the dispute by demanding removal of the fence and decking and by asserting that the easement allowed them, now or in the future, to increase the garage height substantially.

The conflict was therefore a collision between two conceptions of property rights:

• The Plaintiffs’ conception: an easement for support connected to a garage should not lock the garage into its 1988 dimensions if future owners want larger vehicles, higher clearance, or different roof forms.
• The Defendant’s conception: the easement was created in a real-world physical context where a specific garage already existed, and the legal rights should be read as protecting that existing structure rather than granting an open-ended right to expand vertically.

Chapter 3: Key Evidence and Core Disputes

Plaintiffs’ Main Evidence and Arguments

1. Registered Transfer and Easement Terms
   The Plaintiffs relied on the express language of the Transfer creating:

– a Right of Footway,
– a Right of Carriageway over the area marked “Y”, and
– an Easement for Support “to permit and allow at all times” the Plaintiffs to maintain a structure suitable for the garaging of motor vehicles on the marked area.

The Plaintiffs pressed the wording “to maintain … a structure suitable for the garaging of motor vehicles” as supporting a broad conception of permissible garage configurations over time.

1. Contractual and Pre-Transfer Context
   The Plaintiffs pointed to the contract history, including special conditions requiring the Vendors to procure easements “for support” allowing continued use and occupation of the garage and driveway shown on the plan.

2. Development Consent and Council Communications
   The Plaintiffs relied on the existence of development consent granted to the Defendant in September 2023, particularly the fact that the approved plans depicted a pavilion above the garage. The Plaintiffs also highlighted that the Council noted it was not for the Council to interpret private easement impacts, and that consent could be granted despite the easement.

3. Correspondence Detailing Demands and Alleged Impacts
   The Plaintiffs issued letters demanding removal of the fence and decking, restrictions on placing items on the area, and a prohibition on entry by the Defendant’s occupants, invitees, or contractors. The letters contained practical details, such as the Plaintiffs’ assertion that fence palings may have been affixed to the dwarf wall of the garage structure and that building works had caused cracking.

4. Physical Inspection Details
   After inspecting the area under the decking, the Plaintiffs described the decking’s support system, including brick piers, timber beams, and asserted measurements of the system’s overall height. They also asserted that a dwarf wall on top of the garage had been increased in height by three brick courses.

5. The Plaintiffs’ “Future Use” Argument
   A central plank was the idea that modern vehicles are larger than in the 1980s, that future owners may want higher clearance, and that a garage might need a gabled roof or be modified to allow a vehicle stacker system. On this view, anything above the garage that constrained vertical expansion was said to interfere with the easement’s proper enjoyment.

Defendant’s Main Evidence and Arguments

1. Construction Grounded in the Time of Grant
   The Defendant’s case was anchored in the proposition that construction of registered easements is assessed by reference to the text, context, and the physical characteristics reasonably ascertainable at the time of grant.

2. Existence of the Garage as Built
   The Defendant emphasised that the garage had already been constructed by the time the Transfer was executed and registered, and that it had a particular height and roof form. The Defendant contended that the easement for support protected that existing structure rather than authorising indefinite redesign.

3. No Substantial Interference
   The Defendant argued that the existing fence and decking had existed for decades without preventing use of the garage for garaging vehicles and without any demonstrated need for maintenance that was impeded. The Defendant also contended that the Plaintiffs’ fears about future maintenance difficulties and construction impacts were speculative.

4. Laches Defence
   The Defendant raised laches, pointing to the long period during which decking and fencing had existed without complaint, although the Court ultimately did not need to decide the point in order to determine the case.

Core Dispute Points

1. Whether the Easement for Support is vertically unlimited or confined by the garage roof height as it existed at the time of grant.
2. Whether the Right of Carriageway contributes any meaningful positive right to alter or rebuild the garage.
3. Whether existing or proposed structures above the garage constitute substantial interference with the Plaintiffs’ reasonable enjoyment of the easement rights, judged as a matter of practical, evaluative judgment in all the circumstances.
4. Whether the Plaintiffs’ case was too abstract and hypothetical because it was not tied to a specific, properly particularised proposed development by the Plaintiffs.

Chapter 4: Statements in Affidavits

Affidavits in property and easement disputes often perform two simultaneous functions: they provide evidence of physical facts and they frame the moral logic of the dispute. Here, the Plaintiffs’ affidavits operated as both a historical narrative and a strategic legal argument.

On the Plaintiffs’ side, the affidavits emphasised:
– the Plaintiffs’ long-standing use of the garage,
– their asserted lack of consent to any permanent decking or fence arrangements,
– the way the Defendant’s development steps were undertaken without seeking their consent,
– and the potential future prejudice to the Plaintiffs’ ability to adjust the garage for modern needs.

The Defendant served an affidavit that was ultimately not read. That procedural fact mattered less than one might expect. The key dispute was construction of a registered instrument and the practical evaluation of interference. Much of the contest was therefore driven by documents, the Transfer language, the physical reality, and legal principle rather than contested oral credibility.

Comparison of Competing Affidavit Narratives

The Plaintiffs’ narrative treated the above-garage area as part of the Plaintiffs’ protected “functional envelope” for the garage. Even where the Plaintiffs accepted they had known of decking and fencing for many years, the affidavits attempted to separate:
– temporary or removable arrangements originally allowed for convenience, from
– later, more permanent structures asserted to have been installed without consent.

In contrast, the Defendant’s case, advanced through submissions and documents, treated the above-garage area as primarily within the servient owner’s entitlement, subject only to not substantially interfering with the dominant owner’s easement rights as properly construed.

Strategic Intent Behind Procedural Directions About Affidavits

In disputes framed as nuisance by interference with an easement, the Court’s attention is often on whether the claim is properly pleaded and properly particularised. Directions requiring a statement of claim to replace a summons, and orders striking out parts of a pleading, are not mere formality. They perform a filtering function: forcing the applicant party to identify the exact legal pathway and the exact factual acts said to constitute substantial interference.

Where relief seeks mandatory action or restraining orders that would significantly constrain a landowner’s use of their own land, courts expect precision. The strategic value of affidavit evidence is diminished if the case remains unanchored to concrete, particularised facts and a specific proposed course of action that the Court can evaluate for reasonableness and interference.

Chapter 5: Court Orders

Before the final hearing, the Court made procedural directions designed to regularise and narrow the case:

1. The proceedings commenced by summons, but the Court directed the Plaintiffs to file a statement of claim to stand in lieu of the summons.
2. Parts of the original statement of claim were struck out by earlier orders, leading to an amended statement of claim.
3. The Court clarified jurisdictional limits: challenges to the validity of a development consent are not determined in this forum and require proceedings in the appropriate specialist jurisdiction.
4. The Court emphasised that mandatory orders compelling a neighbour to consent to a development application cannot be made in a vacuum; such relief must be founded on a properly pleaded case tied to a particular proposal, refusal, and substantial interference.

These orders shaped the litigation’s core defect: the Plaintiffs’ case remained, in key respects, abstract and insufficiently connected to a specific proposed development by the Plaintiffs that could be evaluated against the Defendant’s property rights.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing dynamic in this case was shaped by a structural asymmetry: the Plaintiffs advanced a broad, future-oriented proposition about the meaning of the easement, while the Defendant advanced a time-of-grant construction rooted in the physical reality and the drafting of the Transfer.

Process Reconstruction: Live Restoration

The Plaintiffs’ evidence was not rejected on credibility grounds. The Court accepted that the first Plaintiff gave evidence in a clear and honest manner, and there was no significant credit attack. The critical breakpoints were not about whether the Plaintiffs were truthful; they were about whether their legal construction matched the instrument and whether their pleaded interference was sufficiently concrete.

The Plaintiffs’ advocacy sought to elevate “potential future needs” into present enforceable rights: increased vehicle heights, the rise of larger vehicles, and possible future installation of stacking systems. Yet the Court treated these as hypotheticals rather than a proven necessity tied to the easement’s reasonable enjoyment.

The Defendant’s cross-examination approach, and overall forensic posture, was correspondingly practical: it did not need to demolish the Plaintiffs’ integrity. It needed to keep the Court’s attention on construction principles and the absence of demonstrable substantial interference.

Core Evidence Confrontation

The decisive evidence battle occurred around:

1. The Transfer Wording
   Especially the clause describing the Easement for Support and the maintenance obligation “limited in height to the outer surface of the roof of the said structure.”

2. The Physical Context at Grant
   The garage existed by the time of the Transfer’s execution and registration, and it had a flat concrete roof and particular height. That observable reality was treated as a central contextual anchor.

3. The Plaintiffs’ Lack of a Specific Proposed Development
   The Plaintiffs did not present a properly particularised development proposal of their own for raising or altering the garage and did not frame their relief around a concrete refusal to consent to a particular plan.

Judicial Reasoning

The Court adopted established principles: owners of a servient tenement retain the ordinary freedom to develop and use their land, subject to not substantially interfering with the dominant owner’s easement rights; and what constitutes substantial interference is a practical, evaluative judgment in all the circumstances.

The turning point was the Court’s focus on construction of the easement and the dangers of deciding interference in a vacuum. The Court’s reasoning can be distilled to a single idea: an easement is not a blank cheque. It is a specific property right with specific contours, interpreted in its legal and physical context at the time of grant.

Whether or not there has been a substantial interference involves a practical, evaluative judgment about neighbours exercising their respective property rights.

That statement was determinative because it framed the case as a real-world accommodation problem, not as an abstract contest of entitlement. On that framing, a party asserting interference must bring the Court something concrete to evaluate: specific facts, specific impacts, and a specific proposal where relevant.

The Court also treated the Plaintiffs’ unlimited-height construction as inconsistent with the Transfer’s structure and language, particularly given the garage’s existence at the time of grant and the wording of the maintenance limitation.

Chapter 7: Final Judgment of the Court

The Court dismissed the Plaintiffs’ amended statement of claim. The Court ordered that the Plaintiffs pay the Defendant’s costs of the proceedings.

These orders reflect a complete failure of the Plaintiffs’ case as pleaded and advanced, rather than a narrow partial defeat on a minor issue.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case sits at the intersection of three recurring features of Australian property disputes:

1. Registered Instrument Formalism, Informed by Real-World Context
   Australian courts construe registered easements as legal texts, but not as disembodied words. The meaning is assessed by reference to text, context, and purpose from the perspective of a reasonable person at the time of grant, including broad, reasonably enduring physical characteristics ascertainable at that time.

2. The Limits of “Future-Proofing” Arguments
   The Plaintiffs’ argument tried to transform future lifestyle preferences and evolving vehicle dimensions into present enforceable proprietary rights. The Court declined to do that without a clear textual foundation and without evidence of functional unsuitability.

3. The Structural Weakness of Abstract Litigation
   A court asked to restrain a landowner’s development will expect the claimant to define precisely what right is being infringed, how it is infringed, and why it is substantial. The Plaintiffs’ failure to bring a specific proposed development of their own, and their reliance on hypothetical future scenarios, weakened their claim at a foundational level.

Judgment Points

1. The Court treated construction as anchored to the time of grant, not to evolving preferences.
   The Plaintiffs attempted to read “structure suitable for the garaging of motor vehicles” as a moving standard that expands with the vehicle market. The Court rejected that approach because it would convert a registered easement into an elastic entitlement that could reshape the servient owner’s land use indefinitely.

2. The existence of the garage at the time of the grant mattered greatly.
   The garage was not a future possibility. It was the central physical feature already on the servient land when the rights were granted. That fact pulled the construction toward protecting an existing structure rather than authorising wholesale redesign.

3. The maintenance clause was treated as a textual signal of vertical limitation.
   The Transfer imposed a maintenance obligation on the dominant owner but limited that responsibility “in height to the outer surface of the roof of the said structure.” The Court treated this as supporting the conclusion that the dominant owner’s rights did not extend above the roofline of the structure contemplated by the Transfer.

4. The Right of Carriageway did not confer ownership-like control.
   The Plaintiffs’ case implicitly leaned on the idea that because the area was used for garaging and carriageway, it carried with it an entitlement to reshape the garage. The Court reinforced the orthodox principle that a right of way is not the equivalent of ownership and does not automatically confer positive rights to alter built structures.

5. The absence of proven unsuitability undermined any claim to ancillary rights.
   Even if ancillary rights can arise where reasonably necessary for the enjoyment of express rights, the Court was not persuaded that vertical expansion was reasonably necessary when the existing garage remained suitable for garaging motor vehicles in the ordinary sense.

6. The Court demanded concreteness in claims of substantial interference.
   The Plaintiffs argued that decking and proposed works would interfere with the possibility of raising the garage height. The Court emphasised that substantial interference is a practical, evaluative judgment on particular circumstances. Hypothetical future plans, without a defined proposal and evidence of necessity or impact, were not enough.

7. Speculation was treated as fatal to the interference case.
   Where the Plaintiffs speculated about maintenance difficulties, construction impacts, and future liability concerns, the Court treated these as insufficient without probative evidence connecting the alleged interference to real impairment of easement enjoyment.

8. The Court separated planning consent from private law rights.
   The existence of development consent did not determine whether private easement rights were infringed, and the Court also made clear that it lacked jurisdiction to declare a development consent invalid in the way the Plaintiffs had, at times, attempted to argue.

Legal Basis

The Court’s reasoning relied on the following legal framework and statutory references:

• Conveyancing Act 1919 (NSW), including the statutory form of right of carriageway and provisions relevant to easements and potential modification pathways.
• Real Property Act 1900 (NSW), as the registration framework under which the Transfer and easements operated.
• Established authority on construction of easements and the principle that ancillary rights are implied only where reasonably necessary.
• Principles governing actionable nuisance by substantial interference with easement rights, assessed as a practical evaluative judgment.

Evidence Chain

Conclusion: The Plaintiffs’ rights were not unlimited in height.
Evidence + Law Pathway:
1. Registered Transfer created an Easement for Support tied to maintaining a structure suitable for garaging motor vehicles.
2. At the time of Transfer, a specific garage already existed, with a defined roof height and form.
3. Maintenance obligation clause limited responsibility “in height to the outer surface of the roof of the said structure,” indicating the contemplated structure included a roof and indicating a boundary at that roofline.
4. Construction principles require interpretation by reference to text and context at the time of grant, including enduring physical characteristics.
5. Therefore, the reasonable construction was that the easement protected the existing garage structure rather than creating an open-ended right to expand vertically.

Conclusion: No substantial interference was shown.
Evidence + Law Pathway:
1. Decking and fencing had existed for decades.
2. No demonstrated history of maintenance impediment, no proven water ingress requiring urgent repair, and no demonstrated inability to access the roof area for inspection.
3. Plaintiffs’ concerns about future repairs and construction impacts were speculative.
4. Substantial interference is a practical, evaluative judgment requiring proof of significant impairment.
5. Therefore, the interference claim failed.

Judicial Original Quotation

The Court’s central construction finding is captured by the way it described the plaintiffs’ contention and rejected it in context:

A reasonable person would determine the intended right was to use the existing structure to garage vehicles, and the servient owner must support that existing structure.

This was determinative because it rejected the Plaintiffs’ attempt to convert a support easement into a positive entitlement to redesign and expand the garage. Once the Court framed the easement as protecting an existing structure, most of the Plaintiffs’ downstream claims about height and future modification collapsed.

Analysis of the Losing Party’s Failure

1. Overreach in Construction
   The Plaintiffs’ construction attempted to read “suitable for garaging motor vehicles” as “suitable for any motor vehicles at any point in time,” which would effectively grant a rolling right to expand the structure. The Court treated this as inconsistent with both the text and the time-of-grant context.

2. Failure to Particularise a Concrete Development Proposal
   The Plaintiffs did not bring the Court a specific proposed alteration plan for the garage and did not litigate around a clear refusal of consent to a particular proposal. Without that, the Court was asked to decide rights in a vacuum.

3. Hypothetical Framing of Interference
   The Plaintiffs’ interference case was built around potential future limitations rather than demonstrated present impairment. Courts are reluctant to grant strong injunctive relief on speculative harm, particularly where it constrains a landowner’s use of their own land.

4. Misplaced Reliance on Planning Controls
   Arguments that works were unauthorised under council processes did not answer the private law question the Court had to determine. Planning legality and easement infringement are related but distinct inquiries.

5. Insufficient Proof of Substantial Interference
   Even where there were complaints of cracking or staining, the Plaintiffs did not establish a probative evidentiary chain showing substantial interference with the easement’s reasonable enjoyment as properly construed.

Reference to Comparable Authorities

1. Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; [2007] HCA 45
   Ratio Decidendi Summary: The rights of an easement holder include express rights and ancillary rights implied only where reasonably necessary for enjoyment of the express grant. This authority supports disciplined limitation of implied rights and rejects expansive implication based on convenience.

2. Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8
   Ratio Decidendi Summary: Whether there is substantial interference with an easement is a practical, evaluative judgment about neighbours exercising their property rights, considering the nature, extent, and significance of interference. This supports requiring concrete evidence and context-specific assessment.

3. Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
   Ratio Decidendi Summary: Construction of easement rights can be strongly influenced by the physical reality and enduring characteristics of land and fixtures at the time of grant, and by what was actually happening on the ground, reinforcing contextual interpretation.

Key to Victory

The Defendant’s success was driven by disciplined focus on three things:

1. Textual Anchors
   The maintenance clause limiting height to the outer surface of the roof of the structure provided a powerful indicator that the easement rights did not extend above that roofline.

2. Contextual Reality
   The pre-existing garage at the time of grant served as a concrete contextual reference point, making it harder for the Plaintiffs to argue for a floating standard of suitability.

3. Forensic Strategy
   By treating credibility as largely uncontroversial and focusing on construction and evidentiary sufficiency, the Defendant avoided distraction and kept the Court anchored to legal principle.

Implications

1. An easement is a boundary, not a blank cheque.
   If you rely on an easement, your rights are defined by the instrument and its context. Before you assume you can expand, rebuild, or modernise a structure, ask: does the wording actually give that power, or does it merely protect what already exists?

2. Future possibilities are not automatically present rights.
   Courts tend to be cautious about enforcing hypothetical future harm. If you want relief, you need to show concrete impairment, not just a fear that you might want something different later.

3. Precision is power in litigation.
   If you want a court to restrain your neighbour’s building works, you must identify exactly what you propose to do, why you have the right to do it, and how the neighbour’s actions substantially interfere. General statements tend to be determined as insufficient.

4. Planning consent does not settle private rights.
   A council can grant development consent without deciding easement impacts, and a private law dispute can still exist even where planning approval is valid. Treat these as parallel systems that require separate strategy.

5. The strongest property cases are built on a chain, not a feeling.
   A winning case usually looks like this: instrument text, physical context, specific conduct, proven impact, and a practical explanation of why the interference is substantial. If any link is weak, the entire claim tends to be determined as fragile.

Q&A Session

1. If an easement says “structure suitable for garaging motor vehicles,” does that automatically allow the garage to be rebuilt bigger?
   Not necessarily. The Court may determine that the wording, read in context and at the time of grant, protects the existing structure rather than granting a positive entitlement to redesign. A party asserting a rebuilding right tends to need a clear textual foundation or a genuinely necessary ancillary right supported by evidence.

2. Can a neighbour build above an area burdened by an easement for support?
   It depends on whether the building activity substantially interferes with the dominant owner’s reasonable enjoyment of the easement rights as properly construed. The assessment is practical and evaluative, not automatic. If the dominant owner cannot show significant impairment, the claim tends to be determined as weak.

3. What should a dominant owner do if they genuinely need to raise a garage roof?
   A careful approach is to prepare a specific proposal, supported by plans and evidence of necessity, and then seek any required consents. If consent is refused, the dispute is then anchored to a concrete proposal and a concrete refusal, allowing the Court to evaluate reasonableness and interference on a real factual platform rather than hypotheticals.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Real Property Neighbour Dispute: Construction of Easements and Alleged Substantial Interference by Building Works Above a Burdened Structure

Judgment Nature Definition

Final Judgment

2. Self-examination of Core Statutory Elements

Core Test Standards for Property, Construction and Planning Law

Statutory Warranties

• Was the work performed in a proper and workmanlike manner?
• Were the materials supplied good and suitable for the purpose?

Application Guidance: In disputes where building works affect neighbouring structures, allegations about defects, cracking, staining, water penetration, or structural compromise should be supported by properly sourced evidence. Courts tend to be persuaded by expert inspection, contemporaneous photographs with clear dates, and a coherent causal chain rather than assertion alone.

Defects

• Is it a Major Defect, engaging a longer statutory warranty period, because it results in or is likely to result in the building being uninhabitable, unusable, or structurally unsafe?
• Is it a Minor Defect, engaging a shorter statutory warranty period, involving incomplete work or non-compliance that does not reach the major defect threshold?

Application Guidance: Where a party asserts structural damage caused by neighbouring works, the risk of a court determining the evidence as insufficient is relatively high if the party does not show timing, mechanism of damage, and the degree of impairment in a way that excludes alternative causes.

Planning

• Have the conditions of the Development Application or Complying Development Certificate been breached?
• Is the alleged breach genuinely determinative of the private law issue, or does it belong in a separate jurisdictional pathway?

Application Guidance: Planning compliance and private easement rights often run on separate tracks. A party who relies only on planning irregularity may face a relatively high risk that the court will determine the point as irrelevant if the pleaded cause is nuisance by interference with an easement. Where planning legality is central, proceedings may need to be commenced in the proper specialist court.

3. Equitable Remedies and Alternative Claims

Promissory or Proprietary Estoppel

• Did the other party make a clear and unequivocal promise or representation about use of the space or the right to build, remove, or retain structures?
• Did you act in detrimental reliance on that promise, such as funding works, consenting to construction, or refraining from enforcing rights?
• Would it be unconscionable for the other party to depart from the promise?

Practical Pathway: In long-running neighbour arrangements, where one party allowed decking or fencing on an assumption of removability, an estoppel argument may arise if the evidentiary record clearly shows promise, reliance, and detriment. The risk is relatively high if the alleged promise is vague, undocumented, or contradicted by long acquiescence without protest.

Unjust Enrichment and Constructive Trust

• Has one party received a benefit at another’s expense, such as use of a roof space or structural support, in circumstances where retention without compensation is against conscience?
• Is there a principled basis to seek restitution or a declared beneficial interest?

Practical Pathway: These doctrines are more commonly relevant where contributions of money or labour create a moral claim to an asset. In neighbour easement disputes, their utility is often limited, and the risk is relatively high that the court will determine them as inapplicable unless the facts show a clear enrichment-and-detriment narrative beyond ordinary neighbour use.

Procedural Fairness

• Was the decision-maker required to afford a hearing, provide reasons, or avoid apprehended bias?
• Is the complaint truly about administrative decision-making, or is it an attempt to relitigate private property rights?

Practical Pathway: Where a party seeks to attack development consent processes, procedural fairness arguments are typically directed at the planning authority and pursued in the proper jurisdiction. Attempting to run such arguments in a private easement nuisance proceeding tends to be determined as jurisdictionally misplaced.

Abuse of Process and Evidence Exclusion

• Was evidence gathered lawfully and fairly?
• Should any evidence be excluded on principled grounds?

Practical Pathway: This is rarely central in civil easement disputes, but it can arise where covert recordings or improperly obtained documents are deployed. The risk is relatively high if a party assumes all evidence is admissible without considering rules of admissibility and fairness.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

• Limitation periods may apply to certain claims, depending on the cause of action and relief sought.
• Jurisdictional thresholds apply: challenges to development consents are typically determined in specialist planning jurisdiction.
• A party seeking mandatory relief compelling another owner to consent to development steps generally needs a specific proposal and a specific refusal, with evidence that refusal substantially interferes with easement rights.

Exceptional Channels

• Where a party can show concrete, current impairment of easement enjoyment, urgent interlocutory relief may be possible, but courts tend to require strong evidence of imminent harm and a clearly arguable case.
• Where long delay exists, equitable doctrines may be raised, but a court may decline to uphold such defences if substantial prejudice is not shown.

Suggestion: Do not abandon a potential claim simply because the situation feels entrenched. If you can define a specific proposal, gather probative evidence, and articulate substantial interference in practical terms, your prospects may improve. Conversely, if your case rests on abstract future possibilities, the risk is relatively high that it will be determined as too speculative.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or disputes involving:
– construction of easements in light of time-of-grant physical context,
– the distinction between easements for support and positive rights of development,
– the requirement for concreteness in alleging substantial interference, and
– the limited relevance of planning consent issues within a private law easement nuisance claim.

Citation Method

As Positive Support: Where your matter involves a registered easement tied to an existing structure at the time of grant, citing this authority can strengthen an argument that construction is anchored to that context and does not expand with changing preferences.
As a Distinguishing Reference: If the opposing party cites this case, you should emphasise the uniqueness of your facts, such as proven unsuitability of the existing structure, a specifically pleaded and evidenced proposal, or demonstrated present impairment, to argue the precedent is not determinative.

Anonymisation Rule

Do not use real names of the parties in practical retellings; use Plaintiff and Defendant. In formal citation, retain the case name and citation as required by AGLC4.

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Conclusion

This case teaches a disciplined lesson about property rights: the strength of an easement claim is rarely in how strongly you want a right to exist, but in whether the instrument and its context actually create it. When a dispute turns on construction, the winning side is usually the party that ties words to the ground, and claims to proof.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Thomas v Pearson [2025] NSWSC 1127), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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