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I have an access easement with an unsealed road (approx. length…

Customer Question

I have an access easement...

I have an access easement with an unsealed road (approx. length 1.5 kms). This is a right of way that allows me to access my property in the country in NSW. There is an 88B instrument that regulates the use of it. It stipulates that the burdened and benefiting owners keep the road to a four wheel drive standard on a 50:50 cost contribution basis. The burdened party (my neighbour says it is better than four wheel drive standard) because this suits his twofold aim of avoiding improving the road and having the poor state of the road acting as a disincentive to people (mainly my visitors) using it. The road, I believe, would not be considered anywhere near four wheel drive by any 'reasonable' person. I consider myself to be such a reasonable person. The question is what is the definition of "four wheel drive standard". The 88B instrument proscribes that parties covered by it attempt to come to agreement before approaching a Court. Please advise.

Submitted: 13 years ago.Category: Australia Law

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Answered in 6 minutes by:

1/7/2010

Solicitor: Leon, Solicitor replied 13 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,733

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Verified

Hi

you will need to get a report from a road expert to give their opinion on the standard of the road.

Once you have that then you will need to file an application with the Court to enforce the covenant on the 88B

You need to be armed with the report as your evidence

I hope this is of assistance and if so please click on the accept button

Customer reply replied 13 years ago

Mr Rizos, I had already thought of the course of action you have suggested. My problem with your answer is that I do not want to get into a my expert - your expert dynamic. (I have experience of such a situation with opposing valuers and it was less than edifying.) As first time user of this service I was hoping for a case law citation that legally defined "four wheel drive standard"; even if some of the definition was obiter and thereby allowing me to narrow the focus. I want to get on top of this without going to Court. If you are unable to assist me to the level of expectation I have prescribed I think I will withdraw from this forum. Thanks for your time.

Solicitor: Leon, Solicitor replied 13 years ago

Hi

your case will revolve around whether the road is of 4wd quality.

In the end it will be expert versus expert.

Even if there is a case that is on that point the experts will have to use that to come up with their report. It is a very narrow area and I am not sure if there is any case on that point.

The only other suggestion I have is to go to mediation it is alot cheaper and you do not have to be represented.

I will look for more info for you

Customer reply replied 13 years ago

Thanks Mr Rizos. I'll wait a few days and see how your further info search goes before withdrawing. I acknowledge your mediation suggestion. Regards XXXXX XXXXX'Keefe

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