Sole vehicular access to carport blocked by neighbor's fence; will the Court impose a statutory right of use under Property Law Act?

Shared Driveway, Statutory Easement, and Compensation: When Can the Court Impose a Right of Way Over a Neighbour’s Land Under the Property Law Act 2023 (Qld)?

Introduction (Mandatory Fixed Text) Based on the authentic Australian judicial case Zagros Group Pty Ltd v QE Family Pty Ltd [2025] QSC 309 (BS 3861 of 2025), 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.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of Queensland (Trial Division), Brisbane
Presiding Judge: Crowley J
Cause of Action: Originating Application seeking a statutory right of use in the form of an easement of right of way under s 180 of the Property Law Act 2023 (Qld)
Judgment Date: 18 November 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Statutory right of use
Keyword 3: Easement of right of way
Keyword 4: Reasonably necessary
Keyword 5: Neighbouring land dispute
Keyword 6: Compensation and costs

Background

This case is a modern suburban version of an old property problem: three adjoining lots that once operated like a single family holding, with one practical driveway arrangement, but no formal registered easement. Years later, the lots are separately owned. One owner relies on a side driveway on the neighbour’s land to reach rear parking and a key pedestrian entry. The neighbour insists: “It is my land; I revoke permission; stay out.” The dispute escalated from letters and barriers to police attendances and physical fencing.

The Court was not asked to decide “who is nicer” or “who behaved better”. The legal task was more precise: whether the statute allows the Court to impose a formal right of way over one lot to secure functional access to the other, and if so, on what terms, with what compensation, and with what costs consequences.

Core Disputes and Claims

Core legal focus: Whether the Applicants satisfied the statutory criteria in s 180 of the Property Law Act 2023 (Qld) so that the Court should impose a statutory right of use, in the form of an easement of right of way, over the Respondent’s land to allow vehicle and pedestrian access to the rear of the Applicants’ land.

Relief sought by Applicants:
1. An order imposing a statutory right of use (easement of right of way) over the Respondent’s side driveway to access rear parking and pedestrian entry.
2. Ancillary orders about survey depiction and practical removal of obstructions.
3. A costs order, with an argument for indemnity costs on the basis of alleged “special circumstances”.

Relief resisted by Respondent:
1. Refusal of the statutory easement on the basis that it was not “reasonably necessary”, was too burdensome, and inconsistent with the Respondent’s proprietary rights and indefeasible title.
2. Assertion that the Applicants had alternative parking access on their own land.
3. Opposition to any adverse costs or enhanced costs.

Chapter 2: Origin of the Case

This litigation began with the kind of everyday reliance that rarely gets documented: a shared pattern of access that “just worked” because previous ownership arrangements made it convenient and conflict-free.

Relationship Between the Properties and How Dependence Formed

Historically, the lots were once owned by a single family group. A single driveway from the main road provided practical rear access across what later became separate titles. Over time, development changed the streetscape, but the rear paving and the side driveway arrangement became entrenched as the functional route to the back of the Applicants’ lot.

The Applicants’ land contained a shopfront and residential accommodation, with rear parking (including a carport). It generated income via leases. That commercial reality matters: access was not simply about convenience; it supported the ordinary operation of tenancies, deliveries, and safe entry and exit.

Financial Interweaving and Daily-Life Dependence

Even without “shared finances” in the personal sense, the dependence was economic and practical: tenants’ vehicles, daily comings and goings, and business use relied on rear access. The rear parking area operated like a small private forecourt that needed a lane to function. The side driveway on the Respondent’s land was that lane.

Conflict Foreshadowing: The Decisive Moments

The conflict did not start in court. It started at the kerb: a letter and a barrier.

The Respondent purchased the neighbouring lot and promptly disputed the driveway use. Barriers and parked vehicles were used to prevent access. The Applicants and their occupants continued to use the driveway. Tensions rose. Police were called. Letters were sent proposing a formal easement by consent. No agreement was reached. Eventually, the Respondent installed a fence running along the driveway line, which had a decisive effect: it prevented vehicles from turning into the Applicants’ rear parking area and interfered with a pedestrian entry route from the driveway to the rear of the Applicants’ building.

Once that fence went up, the dispute became legally urgent. The Applicants were not simply seeking to preserve a long-standing habit; they were attempting to prevent functional lockout from the rear of their land.

Chapter 3: Key Evidence and Core Disputes

This case turned on evidence that was both ordinary and decisive: photos, street views, tenant usage patterns, letters, plans, and credibility under cross-examination.

Applicants’ Main Evidence and Arguments

Photographic evidence and historical imagery:

– Street view imagery over many years showing the existence and evolution of the side driveway, the absence of a fence historically, and the physical layout indicating an access corridor between the buildings.
– On-site photographs showing the driveway’s width, the alleyway-like corridor between buildings, the rear paved areas, and the carport and parking arrangement.

Tenancy evidence about use and need:

– Evidence from occupants about daily vehicle use of the driveway to access rear parking.
– Evidence from an occupant without a vehicle about pedestrian safety issues, including the location of stair access and the relative impracticality and hazard of alternative foot access routes.

Correspondence and attempts to resolve:

– The Respondent’s written notice forbidding driveway use and stating it would be gated.
– The Applicants’ written response asserting historical shared usage and proposing formalisation.
– A formal letter proposing a registrable easement by consent, including a survey plan and prepared documentation, and setting a response deadline.

Planning context evidence:

– Evidence from local government materials indicating the Applicants’ building was within an overlay regulating demolition and major alteration, making a “build your own new driveway” solution practically and legally constrained.

Applicants’ core argument: Without access over the side driveway, the Applicants’ land could not be effectively used for its existing and intended mixed residential and commercial purposes, because rear parking and a key pedestrian access path were effectively unusable.

Respondent’s Main Evidence and Arguments

Proprietary rights and indefeasibility:

– The Respondent asserted that as registered owner it held indefeasible title and could revoke any implied permission. Anyone using the driveway without consent was said to be trespassing.

Alternative access theory:

– The Respondent contended there was an alternative driveway or garage access on the Applicants’ own land, including a basement-style garage entry.

Burden and value impact arguments:

– The Respondent asserted the proposed easement would deprive it of a substantial portion of its land and diminish amenity and value, and would permit uncontrolled access by multiple persons.

Core Dispute Points

Is the statutory right of use “reasonably necessary” for the effective use of the Applicants’ land?
Are there practical, lawful alternatives available to the Applicants (vehicle access and safe pedestrian access) without burdening the Respondent’s land?
What should the Court do with credibility conflicts, especially where photographs and objective materials clash with a party’s narrative?
If an easement is imposed, what compensation is just, and what cost orders follow, including whether “special circumstances” exist?

Chapter 4: Statements in Affidavits

Affidavits are not just narrative; they are strategic instruments. They select facts, anchor them to exhibits, and anticipate cross-examination.

How Each Party Constructed Persuasion Through Affidavit Form

Applicants’ affidavit strategy:
– Build a timeline: ownership dates, usage patterns, escalation events, attempts at resolution.
– Anchor the physical reality with exhibits: street views, photographs, lot reports, and plans.
– Prove necessity through lived function: tenants’ daily use, rear parking dependence, pedestrian safety constraints.
– Prove “reasonable attempts” through documented correspondence with concrete easement paperwork.

Respondent’s affidavit strategy:
– Frame the issue as a strict property rights dispute: “my land; licence revoked; trespass”.
– Recast necessity as convenience by asserting alternative access and challenging planning overlay claims.
– Support a restrictive interpretation of fairness by highlighting personal intentions and perceived misconduct by the Applicants.

Comparing Different Expressions of the Same Fact

Shared driveway use:
– Applicants: longstanding, daily shared use, physically designed and used as a driveway; the dispute began only after the Respondent’s purchase.
– Respondent: not a shared driveway; any prior use was permissive and revocable; current use is unauthorised.

Alternative access:
– Applicants: no other vehicle access exists; front has no parking; rear is only functional parking; alternative would require major demolition or prohibited alteration.
– Respondent: there is a separate driveway-like access and a basement garage; the Applicants can use their own land.

This conflict illustrates how affidavits often convert a physical question into a credibility contest. Photographs and objective records frequently become the silent witness that either confirms or undermines the story.

Strategic Intent Behind Procedural Directions About Affidavits

In disputes like this, the Court’s management of affidavits serves a practical function:
– It forces parties to commit to a factual position early.
– It permits the Court to identify what is truly disputed and what is merely asserted.
– It narrows the hearing to determinative questions: necessity, alternatives, planning constraints, compensation, and reasonableness of refusal to agree.

Chapter 5: Court Orders

Before the final hearing, the case required procedural management consistent with an originating application seeking statutory relief.

Procedural Arrangements and Directions

The matter proceeded by originating application, with affidavit evidence as the primary evidentiary vehicle.
The evidentiary contest was shaped by who was, and was not, required for cross-examination. Where a party did not require cross-examination of the other side’s deponents, the unchallenged evidence carried enhanced practical weight.
The proposed easement area was identified by survey plan material suitable for depiction in an order, allowing precision about the burdened and benefited land and the corridor affected.
The Court addressed admissibility issues where evidence was tendered for a limited purpose (for example, reliance on representations as to why a purchase decision was made, rather than proof of the truth of the representations).

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

The hearing was the point where the dispute stopped being a neighbourhood standoff and became an evidentiary contest governed by statutory criteria.

Process Reconstruction: Live Restoration

A key feature of the hearing was that the Applicants’ evidence was, in substantial part, unchallenged by cross-examination of their deponents. In contrast, the Respondent’s director gave evidence and was cross-examined. That asymmetry matters. Courts do not automatically accept unchallenged evidence, but if it is coherent, supported by objective material, and not undermined, it becomes difficult to dislodge.

Cross-examination pressure points included:
– The Respondent’s assertions about alternative access and a basement garage.
– The Respondent’s claims about personal intention to live in the property.
– The Respondent’s account of events involving barriers, alleged damage, and police.

Where a witness gives answers that appear evasive, inconsistent with documents, or implausible against physical reality, credibility becomes decisive. In property cases involving physical layout, “implausible” often means “inconsistent with photos, plans, and common movement patterns”.

Core Evidence Confrontation

The driveway reality:
The physical layout showed a narrow paved corridor between buildings that functioned as the only route to the rear. Historical images supported longstanding use. The fence, installed by the Respondent, prevented vehicles from turning into the Applicants’ rear parking area.
The alternative access claim:
The Court assessed whether a separate vehicle access existed on the Applicants’ land. The Respondent’s account needed to survive the combined weight of photos, tenant descriptions, and practical dimensions. It did not.
The planning constraint:
The Court considered evidence that demolition or significant alteration of the Applicants’ building was regulated, making the “just build a new access” idea neither simple nor necessarily lawful.

Judicial Reasoning and the Statutory Frame (Judicial Original Quotation Principle Executed)

The statute required the Applicants to satisfy multiple criteria, but the hearing’s centre of gravity was “reasonably necessary”. The Court treated this as the crucial issue and then worked through the remaining criteria in a structured way.

Key judicial statement on credibility and disputed facts (context: why the Court preferred the Applicants’ version of events and rejected the Respondent’s):

“I accept Zagros’ evidence and I reject [the Respondent’s] contrary evidence on each of the three disputed issues. I found his evidence to be unreliable and implausible in several material respects. He was evasive and refused to answer simple, direct questions on many occasions.”

Why this mattered: Once the Court reached a firm credibility view, the disputed fact questions (alternative parking, intention to occupy, and planning overlay) were resolved decisively. That resolution fed directly into the statutory criteria, especially reasonable necessity and the absence of viable alternatives.

Key judicial statement on the necessity threshold (context: whether the Applicants were merely seeking convenience or demonstrating necessity for effective use):

“The proposed easement is not simply a matter of preference, convenience or desire… It is a necessity for the effective use of its land.”

Why this mattered: This sentence performs the legal work of distinguishing a merely advantageous arrangement from a statutory threshold that justifies the Court diminishing another owner’s proprietary rights.

Chapter 7: Final Judgment of the Court

The Court granted the statutory right of use and made consequential orders addressing compensation and costs.

Orders

A statutory right of use was imposed, in the form of an easement of right of way, over the Respondent’s land (the driveway corridor) to connect the benefited land (the Applicants’ lot) with the road-facing access corridor and rear parking functionality.
Compensation was ordered to be paid by the Applicants to the Respondent in the sum of AUD $10,000, and the Applicants were also required to pay the Respondent’s reasonable costs of removing any fencing obstructing the area subject to the statutory right of use.
Costs: The Respondent was ordered to pay the Applicants’ costs on the standard basis.

This outcome is structurally important: the Court both imposed the easement and required compensation, reflecting the statute’s balance between necessity for effective use and protection of the burdened owner from uncompensated disadvantage.

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

This chapter follows the mandatory internal order: Special Analysis → Judgment Points → Legal Basis → Evidence Chain → Judicial Original Quotation → Analysis of the Losing Party’s Failure.

Special Analysis

This decision is significant because it applies the newer Property Law Act 2023 (Qld) regime to a real-world suburban access conflict, while also importing and adapting principles from authorities developed under the previous statutory provision. The Court treated the statutory power as “ameliorative”: it can cut across indefeasible title in a limited, structured way, but only where strict criteria are met and compensation can address disadvantage.

A second unusual feature is the costs reasoning. The statute sets a default: applicants usually pay costs unless special circumstances exist. The Court’s approach demonstrates that “unreasonable refusal” is often already built into the statutory merits criteria, and it will not automatically double as “special circumstances” for costs. Instead, the Court located special circumstances in the practical reality of whether the responding party actually incurred professional legal costs.

Judgment Points

The statute is designed to balance competing landowner interests, not to punish bad behaviour.
Even if a burdened owner acts in an “unneighbourly” way, the Court’s focus remains on statutory criteria: necessity, planning consistency, public interest, compensability, and reasonable attempts to agree.
“Reasonably necessary” sits closer to necessity than convenience.
The Court treated vehicle and safe pedestrian access to the rear as functionally essential to the Applicants’ mixed-use land. The test is objective and degree-based, but it demands more than preference.
Objective evidence beats narrative when physical reality is central.
Photographs, street views, lot reports, and the practical geometry of movement became more persuasive than asserted beliefs about alternative access. This is a recurring lesson: property disputes are often decided by what the land actually allows, not what a party asserts it allows.
Planning overlays can indirectly prove necessity by narrowing lawful alternatives.
The Court did not require the Applicants to prove demolition was absolutely impossible forever. It was enough that serious modification was strictly regulated, and the evidence did not support a lawful, practical alternative route that would preserve effective use.
Indefeasible title is not a complete answer to a statutory easement application.
The Court treated the statutory scheme as capable of imposing limited user obligations notwithstanding indefeasible title, provided the statutory safeguards are met.
Compensation is not symbolic; it must reflect repeated ongoing disadvantage.
The Court increased the proposed figure to AUD $10,000, explicitly factoring the nature and extent of disadvantage and the likely daily usage burden.
Reasonable attempts to agree must be concrete and documented.
The Applicants did not simply complain; they proposed a registrable easement with a survey plan and prepared documents, offered to cover costs, and gave time for response. Silence or non-engagement can support a finding of unreasonable refusal.
Costs under s 180(13) require more than “the other side was unreasonable”.
The Court drew a line: unreasonable refusal is often a statutory gateway issue; it does not automatically justify indemnity costs or a departure from ordinary cost allocation. The Court identified special circumstances in the fact that the Respondent was not represented by lawyers and so did not incur professional legal costs of the kind costs orders are designed to partially indemnify.

Legal Basis

The Court’s analysis was grounded in s 180 of the Property Law Act 2023 (Qld), including:
– s 180(1) and s 180(5)(a): reasonable necessity for effective use and development (here, effective use).
– s 180(5)(b): consistency with the Planning Act 2016.
– s 180(5)(c): consistency with the public interest.
– s 180(5)(d): adequacy of compensation for loss or disadvantage.
– s 180(5)(e) and (f): reasonable attempts to obtain agreement and unreasonable refusal.
– s 180(9): mandatory compensation order if loss or disadvantage is suffered.
– s 180(13): costs payable by the applicant unless special circumstances exist.

The Court also drew on established authorities explaining “reasonably necessary” and the policy nature of the statutory power, and treated those principles as still relevant despite different drafting in the new Act.

Evidence Chain

Victory Point 1: Proving functional dependence on rear access
– Evidence: rear carport and parking configuration; tenancy usage; daily access needs.
– Logical step: effective use of the land required the rear parking to remain usable.
– Result: without the driveway corridor, the rear parking became practically unusable.

Victory Point 2: Eliminating “easy alternative” arguments
– Evidence: photographs showing no viable vehicle-width passage on the Applicants’ other side; occupant evidence about unsafe narrow passage; inconsistency between alleged garage and images.
– Logical step: if a realistic alternative existed, necessity would weaken into convenience.
– Result: the Court found no other accessible parking facility or garage.

Victory Point 3: Constraining “rebuild your way out” solutions through planning context
– Evidence: local government lot report and overlay code regulating demolition; lack of evidence that the building was structurally unsound; continued leasing indicating functional soundness.
– Logical step: if major demolition is heavily regulated, “just demolish” is not a practical alternative.
– Result: the Court accepted modifications would be strictly regulated and major works would likely be required.

Victory Point 4: Establishing long-standing usage as context for burden assessment
– Evidence: historical shared use; rear paving merging across lots; absence of a dividing fence historically; use continuing up to the dispute.
– Logical step: if the burdened land has been configured and used as a driveway, the incremental burden of formalising shared use is lower.
– Result: the Court treated the burden as relatively slight compared to the necessity.

Victory Point 5: Demonstrating reasonable attempts to agree and unreasonable refusal
– Evidence: written proposals; a formal solicitor letter; survey plan; prepared easement documentation; offered payment of registration costs; no substantive response.
– Logical step: the statute expects cooperation where it ought to occur; non-engagement can be unreasonable.
– Result: the Court found reasonable attempts were made and refusal was unreasonable.

Victory Point 6: Neutralising indefeasibility as a rhetorical shield
– Evidence: statutory text and purpose; acceptance that the statute can diminish property rights in limited ways.
– Logical step: indefeasible title is a starting point, not an endpoint, under an ameliorative statutory regime.
– Result: the Court treated statutory criteria as the controlling framework.

Victory Point 7: Framing compensation as realistic, not nominal
– Evidence: daily recurring shared use burden; amenity impacts; loss of exclusive control.
– Logical step: compensation should reflect real disadvantage and ongoing usage patterns.
– Result: AUD $10,000 was ordered, plus fence-removal costs.

Victory Point 8: Costs as a separate statutory question with its own logic
– Evidence: Respondent appeared through its director and did not incur professional legal costs; High Court authority that costs are partial indemnity for professional costs actually incurred.
– Logical step: the Court can identify special circumstances that justify a departure from default cost rules where the default would not serve its indemnity rationale.
– Result: costs followed the event on the standard basis.

Judicial Original Quotation

Key statement on the statutory purpose and relationship with indefeasibility (context: why title alone could not defeat the statutory application):

“Section 180 of the [Act] is an ameliorative provision… intended to provide the Court with the power to grant limited rights over land owned by another in certain circumstances, irrespective of the fact that the owner has indefeasible title.”

Why this mattered: It clarifies the statutory architecture. Indefeasibility remains important, but it yields to a controlled statutory mechanism where the criteria demand it.

Key statement on compensation being more than the Applicants’ proposal (context: the Court’s adjustment from a lower suggested figure):

“I consider an amount of $10,000 would be just compensation… [and] factor in the repeated, unrestricted daily usage…”

Why this mattered: The Court treated compensation as reflecting ongoing real-world impact, not just a token to make the order feel balanced.

Analysis of the Losing Party’s Failure

Over-reliance on indefeasible title as a complete defence
The Respondent’s position treated registration as shutting down the inquiry. The statute is designed precisely to deal with circumstances where strict property rights prevent effective use of neighbouring land despite a refusal that ought not persist.
Failure to establish a credible alternative access pathway
Once the Court rejected the alternative garage and driveway narrative, the Respondent lost the key factual lever that could have recast the Applicants’ case as mere convenience.
Credibility deterioration under cross-examination
Where evidence was viewed as evasive, implausible, and inconsistent with objective materials, it undermined the Respondent’s narrative across multiple disputed facts, not just one.
Weak evidentiary support for claimed loss in value or excessive burden
Assertions about dramatic diminution in value and excessive land loss were not supported by reliable evidence. The Court preferred a practical assessment: the land segment was already configured and used as a driveway.
Inadequate engagement with the statutory “attempts to agree” pathway
Silence or refusal to engage meaningfully with a proposed registrable easement, when necessity was obvious, made it easier for the Court to find the refusal unreasonable.

Implications

If your property’s practical function depends on crossing a neighbour’s land, you are living on borrowed time unless the right is formalised. The law can fix that, but only if you prove necessity rather than convenience.
Photographs, plans, and the lived geometry of a site often decide these cases. When your story fights the physical layout, the physical layout usually wins.
“Indefeasible title” is powerful, but it is not absolute against carefully drafted statutory mechanisms. The deeper question becomes whether the statute’s safeguards are satisfied.
Reasonable attempts to negotiate are not a box-ticking ritual. Concrete proposals, survey plans, and registrable documentation can become your strongest evidence of reasonableness.
Compensation is part of fairness, not a penalty. If you need the right of way daily, expect the Court to price that disadvantage in a way that reflects real ongoing impact.

Q&A Session

Q1: Does a long history of shared driveway use automatically create an easement?

No. Long use may suggest an informal practice, implied permission, or historical convenience, but it does not automatically create a registered easement. In most cases, the practical value of the history is evidentiary: it helps show how the land has been used, why the claimed right is necessary, and why the burden on the neighbour is limited because the land has already been configured for that purpose.

Q2: If a neighbour revokes permission and erects a fence, is that unlawful?

Not necessarily. A registered owner is generally entitled to control access to their land and withdraw permission, even if it causes real hardship. The legal question becomes whether a statutory scheme allows the Court to impose a limited right of use despite that control. A fence can be lawful, yet still be ordered removed or modified once an easement is imposed.

Q3: Why did the Court order compensation even though the Applicants “needed” the driveway?

Because statutory rights of use are designed to balance necessity with fairness. Even when a right of way is necessary, the burdened owner loses exclusive control and amenity. The statute requires compensation where loss or disadvantage is suffered, and the Court will set an amount it considers just in light of ongoing usage.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Neighbouring Land Access Dispute — Statutory Easement of Right of Way Under the Property Law Act 2023 (Qld)
Judgment Nature Definition: Final Judgment (Originating Application determined on its merits)

2. Self-examination of Core Statutory Elements

This case belongs to category ⑤ Property, Construction and Planning Law.

Core Test: Statutory Warranties

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

Practical note for readers: These statutory warranty questions commonly arise in building disputes and are included here as part of the category framework. In an access easement dispute, they usually become relevant only if the dispute overlaps with construction work affecting access, fencing, driveway works, or boundary structures. The risk profile tends to increase where informal works are done without written scope, without proper certification, or without clarity about who bears maintenance and repair responsibilities.

Core Test: Defects

Is it a Major Defect (6-year statutory warranty) or a Minor Defect (2-year statutory warranty)?
Does the defect render the building uninhabitable or cause the destruction of the building?

Practical note for readers: These defect classifications typically apply to statutory warranty regimes. In easement disputes, defect analysis can become relevant if access changes are justified by alleged structural unsoundness or compliance issues. Assertions of “unsafe” conditions tend to require objective support such as engineering evidence.

Core Test: Planning

Have the conditions of the Development Application (DA) or Complying Development Certificate (CDC) been breached?

Practical note for readers: Planning constraints can be decisive. If an owner argues they can create alternative access by demolition or alteration, the Court will often look for evidence of planning feasibility and lawful pathways. Where a site is subject to overlay controls, demolition and significant alteration can be regulated, and the viability of alternatives tends to be assessed realistically rather than hypothetically.

3. Equitable Remedies and Alternative Claims

This section is not a substitute for statutory pathways. It maps alternative or supplementary avenues that sometimes arise where statutory law is inapplicable, incomplete, or strategically disadvantageous.

Promissory / Proprietary Estoppel

Did the other party make a clear and unequivocal promise or representation, for example, that access would be allowed or that a driveway would remain shared?
Did you act in detrimental reliance on that promise, for example, by purchasing, leasing, investing in fit-out, or arranging tenancies based on the availability of rear access?
Would it be unconscionable for the other party to resile from that promise?

Result reference: Even without a written contract, Equity may estop the other party from going back on their word where reliance and unconscionability are established. In practice, the evidentiary burden tends to be relatively high. It often requires clear proof of the representation, the reliance, and the causal link between reliance and detriment.

Unjust Enrichment / Constructive Trust

Has the other party received a benefit at your expense, such as improved land utility or increased value due to shared arrangements funded or maintained by you?
Is it against conscience for them to retain that benefit without payment or adjustment?

Result reference: The Court may order restitution of the benefit or recognise a beneficial interest via a constructive trust in some contexts. In a pure access dispute, constructive trust is less common than easement or estoppel analysis, but it can arise where there is shared expenditure on access infrastructure.

Procedural Fairness

Did the decision-maker afford the party natural justice? Was there an opportunity to be heard? Was there an apprehension of bias?

Practical note: This is most relevant in administrative contexts. It is included here to remind litigants that where planning or regulatory decisions about demolition or access are involved, review pathways may exist if procedural fairness is denied.

Ancillary Claims

If a statutory easement application is uncertain, can the dispute be reframed in a way that secures interim practical relief, such as injunctive relief to prevent obstruction pending determination?
Practical note: Interim relief tends to require a serious question to be tried and a balance of convenience analysis. It can be strategically important where access is essential to tenancy operations.

Abuse of Process and Evidence Exclusion

Was the procedure for gathering evidence lawful? Can an application be made to exclude illegally or improperly obtained evidence under s 138 of the Evidence Act 1995?

Practical note: This may become relevant if a party has recorded conversations or entered land to gather evidence. The risk of exclusion tends to rise if evidence is obtained by trespass or other misconduct, though the Court’s discretion is nuanced.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

For statutory easement applications, common “hard indicators” include:
– The benefited land cannot be effectively used for its existing lawful use without the right, or would be materially impaired in practical function.
– There is no reasonably practicable alternative access route that is lawful, physically viable, and proportionate in cost and disruption.
– Compensation is feasible and can adequately address the burdened owner’s loss or disadvantage.
– The applicant has made reasonable attempts to obtain agreement, and refusal is unreasonable in all the circumstances.

Exceptional Channels (Crucial)

Where an apparent alternative exists in theory but requires major demolition or works, exceptional constraints often arise through planning regulation, heritage or overlay controls, engineering requirements, and cost disproportionality. These constraints can make “theoretical alternatives” practically unavailable.

Suggestion: Do not abandon a potential claim simply because the neighbour asserts you have another way. Carefully test the alternative against planning constraints, physical dimensions, and objective evidence. In many disputes, the turning point is whether the alternative is real, lawful, and workable, rather than merely imagined.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or disputes involving:
– The interpretation and practical application of s 180 of the Property Law Act 2023 (Qld).
– The meaning of “reasonably necessary” in statutory easement applications and the distinction between necessity and convenience.
– The relationship between statutory easement powers and indefeasible title.
– Compensation principles for ongoing loss of amenity and shared use burdens.
– Costs reasoning where a party appears without legal representation and the statute contains a default cost rule.

Citation Method

As Positive Support: When your matter involves land that cannot be effectively used without access over neighbouring land, and where you can show absence of viable alternatives, this authority can strengthen the argument that the Court may impose a right of way with compensation.

As a Distinguishing Reference: If the opposing party cites this case, emphasise any differences such as the existence of lawful and practical alternative access, lesser dependence on rear parking, different planning controls, or stronger evidence of substantial burden and compensable loss.

Anonymisation Rule: Do not use the real names of the parties; strictly use professional procedural titles such as Applicant / Respondent.

Conclusion

This judgment shows how the law resolves a practical access impasse: not by moralising, but by measuring necessity, feasibility of alternatives, planning reality, compensation, and reasonableness in negotiation. Where access is truly necessary for effective use, and where statutory safeguards are met, the Court can impose a limited right of way even against the backdrop of indefeasible title, while still insisting on compensation and carefully reasoned costs outcomes.

Golden Sentence: 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 Queensland (Zagros Group Pty Ltd v QE Family Pty Ltd [2025] QSC 309), 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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