Right of Carriageway Query

Hi Folks,
We have a property with a 6m wide right of carriageway (for access and services) to a single lot below us. There is an existing 3m wide concrete driveway running through the centre of the easement.

The critical question is: Can the owner of the lot below demand to widen the 3m wide driveway without our consent?

We are concerned that the lot below could be developed as a multi unit project and significantly increase traffic volumes through our lot. This would require (by council) widening of the driveway to 5.5 - 6m in order to allow 2 car passing since the carriageway is around 50m long.
Thanks, RS

 

Kemp Strang - Easements and Common Courtesy

I would be surprised if a Council looked favourably at a 50m long right of way for a multi unit development.

 

Is the driveway sited on the right of carriageway or over the easement for services?

Is this sitting in a different stratum (with development rights)?

Is the block of a size which can be developed?

If you are granting a modification to the ROW then you could also demand compensation.

Howcare you going to protect your rights to access the services below if they widen the driveway?

 

I believe you will find the roadway width is governed by the DA for the site and is a standard compliant width for a carriageway ie a driveway. All these things must comply with standards and that includes a carriageway or a footpath, lighting etc. Widening would not be permitted without a DA and no DA would allow a full width roadway for cars to pass. Setbacks then start to get involved and footpaths etc etc...It just wont occur. Speak to the TP at Council - They love to discuss this stuff.

Even if they applied there would be dozens of reasons for refusal. Garbage services, turning, noise, fire services, lighting, drainage, roadway engineering, kerbing, etc etc. What is there is a driveway. Not a road.

And for every m2 of concrete road the setbacks and other land use gets reduced. It becomes unviable

 

SNM,
a)Driveway is 3m wide with 500mm of gutter. It is situated in the middle of the easement. Thus, there is a strip of grass around 1.2m on either side of the concrete driveway to allow services to run down to the lot below. The lot below is 5000sqm and has been given approval to be subdivided into 2 lots of approx 2500sqm each.
b) No
c) Yes
d) Understood
e) Good point

 

Good points, I spoke to LPI and they said it is a council issue if the driveway widening is requested by the owners of the lower lot. I will have a chat with the planners to get some feedback on the potential issues.

Thanks, RS

 

You need to look at the precise terms of the right of carriageway including any restrictive covenants applying to the lower block to see whether there is a right to subdivide. (gallagher v Rainbow High Court 1994 says there would be a right to subdivide) Is there a Section 88B instrument.

I would not normally think the benefited lot would have the right to widen a concrete strip unless it is specified in the right of carriageway. Who is responsible to repair the carriageway?.A right of carriageway is normally a right to access your land using your neighbour's not a right to build the next Cahill Expressway.