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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Shailer v Buckley & Anor  QDC 161
BERNARD PATRICK SHAILER
MICHAEL BERNARD GARY BUCKLEY and SHARON LEE GARDNER
Gympie District Court
30 August 2019
Brisbane District Court
8 April 2019 (and view on 5 April 2019)
WILL BE SHOT
WILL BE SHOT
TRIAL – EASEMENT – BREACH OF GRANT OF EASEMENT – UNREASONABLE INTERFERENCE – RIGHT OF WAY – where applicant contends breach of easement by respondent – where applicant seeks two separate injunctions and an order requiring the respondents to remove gates, fence and obstructions on the easement – where applicant is one of a number of property owners who utilise the easement over a lot in order to access various properties – where the applicant, to access the easement, must open and shut numerous gates – where applicant was denied use of electronic gate openers – whether a fence within the easement interferes with the applicant’s rights
Avis & Anor v Mark Bain Constructions Pty Ltd  QSC 80
Clifford v Hoare (1874) LR 9 CP 363
Ex-Parte Purcell (1982) 1 Qd R 613
Finlayson v Campbell (1997) 8 PBR 15
Kettleton v Murray & Anor  QDC 64
S Gerber for the applicant
S McNeill for the respondent
Jeffery Cuddihy and Joyce for the applicant
Neilson Stanton and Parkinson for the respondent
- The applicant, Mr Shailer, has owned land at Kanigan, north of Gympie, for many years. In 1975 he owned a property at 294 Repeater Station Road. That property is however now owned by the respondents. They purchased it in November 2017. I shall hereafter refer to it as lot 3. Lot 3 abuts Repeater Station Road. The road stops at what I will call the southern boundary of the lot. In 1975 land to what I will call the north of lot 3 was owned by Arnold and Iris Rodgers but is now owned by the applicant. I shall refer to it as lot 5.
- By deed of 1 October 1975 the applicant and his wife, as owners of lot 3, granted an easement over lot 3 to the owner of lot 5. The easement, which is about 800m long, travels in a generally north-south direction. The grant is stated in what even now can be considered dated language, as follows;
“…The grantors hereby grant…full and free right and liberty for the grantees and their tenants agents servants visitors invitees licensees … and all others having the like right from time to time…by day and by night to go return pass and repass with or without motor card [sic] and other vehicles of any description laden or unladen in through along and over the servient tenement for the purposes of coming from the said dominant tenement to the Public or other road in Portion 1340 …
The grantors hereby covenant with the grantee as follows:-
That the grantors will not at any time obstruct the servient tenement…so as unduly or unnecessarily to delay or interfere with the exercise of the grantees’ rights hereunder.”
- The effect of the deed is that the owners of lot 3, currently the respondents, are required to give to the owners of lot 5, currently the applicant, and all others authorised by him, a right of passage over the easement, covenanting not at any time to obstruct that right of way so as to unduly or unnecessarily delay or interfere with that right of passage. It was not disputed that the easement is the only practical means of road access to lot 5.
- The applicant contends that the following matters, separately or in combination, constitute a breach of the easement by the respondents:
- The 2 front gates;
- Signs on the front gate;
- The middle gate, including whether it is required at all and whether it should remain open if not being used to restrain livestock;
- The fence along the easement which commences some distance past the middle gate and was constructed in December 2018;
- The respondents’ refusal to provide the applicant with an electronic device to open and close the electronically controlled gates.
- He had also contended that a fence protruding across the end of the easement near to the gate to lot 5 constituted a further breach but it seems common ground that fence has been removed already, in December 2018.
- The applicant seeks:
- An injunction restraining the respondents from obstructing his access to the easement
- An order requiring the respondents to remove gates, fences and obstructions on the easement and an injunction restraining them from placing any other obstruction on the easement, or from closing any gates across the easement.
- The applicant is one of a number of property owners who utilise the easement over lot 3 in order to access their various properties. The other owners do so by reason of separate grants of easement.
- An unusual feature of the case, to which I have already referred, is that the applicant was at the time of the grant of the easement the owner of the servient tenement, but is now the owner of the dominant tenement. Nothing turns on this.
- Another unusual feature of the case is that his Honour Judge Robertson considered issues arising out of the same easement, but affecting a different dominant tenement, in a decision of Kettleton v Murray & Anor  QDC 64. Again, that issue is of no current importance but his Honour’s judgment does contain a helpful history of the easement and helpful and concise explanations of relevant legal principles. It should be noted that the easement in favour of Mr Kettleton’s property was a far simpler form of easement than the somewhat archaic covenant in favour of lot 5.
- Nevertheless I think it helpful to set out what his Honour says at paras 14 ff of his judgment:
“ The Law of Easements is not without its difficulties, and I am grateful to Mr Ferraro, Counsel for Mr Kettleton, for his assistance. It is well settled that in relation to a simple right of way easement such as this, the owner of the dominant tenement (Mr Kettleton) does not have a right of access to, and use of the right of way wholly unobstructed by any limitation placed upon such use by the owner of the servient tenement (the Murrays). Only a “substantial” interference with the right of way is actionable, that is one which is “a real, substantial interference with the enjoyment of the right of way.” As long as Mr Kettleton is given reasonable access to, and use of the right of way, there is no substantial interference with his enjoyment of it. Whether there is substantial interference with the enjoyment of the right of way depends on the facts of each case.”
 In Trewin v Felton  NSWSC 851, Brereton J set out the ordinary rule in relation to the fencing or gating of a right of way, absent any provision in the Easement to the contrary:
“…ordinarily, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the servient owner is entitled to fence the right of way, provided that sufficient points of access through gates are allowed to permit reasonable use of the right of way; that the dominant owner is not entitled to have the right of way remain unfenced; and that the dominant owner is not limited to a single point of access and does not irrevocably elect to use only one point of access by initially determining to do so, but may from time to time vary the points at which access is exercised to and from the right of way. Further, the servient owner may gate the right of way, provided that the gate does not unreasonably obstruct use of the right of way.”
 That passage was quoted with approval by Boddice J in Brown v Jackson at . That was a case involving a much more sophisticated electronic gate across a right of way in an upmarket rural residential setting on the Gold Coast, with a much more expansive easement, including the words “free from obstructions”, and which imposed on the grantor (the owner of the servient tenement), the positive obligation to “remove all obstructions of whatever kind now or at any time hereafter being upon the same.” Not surprisingly, his Honour found those words were unambiguous. Given the sophisticated nature of the gate in that case and other circumstances, his Honour also found that the installation of the gate by the owner of the servient tenement constituted “a real, serious and substantial interference with (the owner of the dominant tenement’s) access to the easement.” The facts and circumstances here are completely different.”
- It was accepted by the applicant in this case that the grant of easement did not prohibit the placing of gates and fencing on and along the easement. Rather, his counsel’s submission was that the combination of gates, fences and signage in fact erected on the easement, and the refusal of the respondents to provide the applicant with an electronic gate opener to two electronically controlled gates on the easement constitutes a real and substantial interference with the applicant’s right of way over the easement.
- In Finlayson v Campbell (1997) 8 PBR 15, 703 at 15, 709 Young J in the New South Wales Supreme Court referred to an earlier decision in Clifford v Hoare (1874) LR 9 CP 363 where at 372, Denman J said:
“I come to the conclusion that it was not intended to give to the plaintiff and to the other persons through him a right to go upon every square foot of the space so delineated, but only a right to the reasonable use of a way such as substantially existed over the spaces pointed out. It is only a grant of reasonable user of a right of way.”
- That statement of the law was not disputed before me but is of relevance because of a fence constructed on the back portion of the easement in December 2018. That fence effectively precludes the applicant from using the eastern part of the easement in that location. The question is however not whether the fence precludes such use, but whether its construction, perhaps in combination with other factors, constitutes a substantial interference with the applicant’s right of way or, to adopt the words of the grant, whether the effect is “unduly and unnecessarily to delay or interfere” with the exercise of the applicant’s rights under the grant.
- Such an approach, as Young J found in Finlayson’s case, means the applicant is not entitled to the benefit of an easement free of all obstructions. Only if such obstructions amount to a substantial interference with the applicant’s rights of way may the applicant be entitled to relief.
- In Ex-Parte Purcell (1982) 1 Qd R 613, McPherson J said that:
“The question in a case such as this is not simply whether the interference is ‘substantial’, if that expression is used simply to denote an extensive interference. It is whether it is ‘material’, and it is material if the consequences of the interference are likely to be extensive, even though the interference itself may be slight and the occasions of its occurrence infrequent.”
- Young J, in Finlayson’s case, said in relation to this observation of McPherson J; that the decision’s importance was in “throwing up the matter that a substantial interference may in appropriate circumstances be caused by a relatively small physical interference”.
- In this case the applicant visited the property only occasionally. It seems to me that McPherson J’s observations may be relevant because of the specific assertion by the applicant that the nature of the interference in this case even if a relatively small physical interference was a substantial interference because it was such as to deter would be buyers of the applicant’s property.
- Finlayson’s case was also relied on by the respondent as authority for the proposition that the placement of signs in the area surrounding the front gate to the easement, where it abuts Repeater Station Road, cannot constitute a breach of the grant of easement because the signs are not a physical interference with the applicant’s right of way.
- In Finlayson’s case Young J, in holding that physical obstructions amounting to more than mere dissuasions were necessary to constitute a breach of the grant said at p 15, 711:
“Mr Coles QC insisted in his submissions that a non-physical interference could of itself amount to a substantial interference with a right of way. He instanced obstruction of view of a driver of a vehicle using a right of way creating a situation where the driver had to use greater skill and care in manoeuvring the motor vehicle. He mainly relied on Cross’s case.
With respect, I cannot see how this proposition can be correct, though in most cases, including this case, it really does not make any difference. This is because when one is looking at substantial interference this type of question really merges into the problems caused by physical obstructions.
To take an example, however, suppose that to dissuade a neighbour from using a right of way the servient owner painted horror pictures of people being massacred or skeletons hanging in a visible place on the right of way. This would be a non-physical interference in the sense that it might make the right of way less attractive, but I cannot see how it would be a substantial interference with the right of way.”
- I am unpersuaded of that view. In my view, if offensive signs, or an excessive number of signs, had the effect of dissuading, for example, buyers from entering upon the applicant’s right of way so as to inspect the applicant’s property, and so dissuading them from purchasing the property, then those signs do act as an interference with the exercise of the applicant’s right of way.
- The question of course remains whether, in the circumstances of this case, they in fact did so.
- Before turning to the facts of the case, I should add one further legal observation in view of the fact that a view of the property was conducted by me.
- On 5 April, prior to the commencement of the trial, I visited the subject property with the parties’ solicitors. I am mindful of the limited use for which a view can be utilised. In Avis & Anor v Mark Bain Constructions Pty Ltd  QSC 80, Atkinson J said:
“Views are permitted by r 478 of the Uniform Civil Procedure Rules (“UCPR”) which provides that the court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding. In relation to the utility of a view, the High Court in Scott v Numurkah Corporation (1954) 91 CLR 300 at 313 and 315 cited Unsted v Unsted (1947) 47 SR (NSW) 495 where, at 498, Davidson J observed that:
“Whilst a view is frequently a valuable adjunct to a hearing to enable the truth to be elicited, there are well-recognised limits within which such a procedure must be kept. … In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence: London and General Omnibus Co. Ltd. v. Lavell. Yet, sometimes, for example, in cases of passing off, or otherwise when what appears to the eye is the ultimate test, the Judge, looking at the exhibits before him or examined by him as if they were exhibits in the case, and also paying attention to the evidence adduced, can apply his own independent judgment notwithstanding what witnesses have deposed to on the particular point: cf. Bourne v. Swan & Edgar Ltd.; Payton & Co. v. Snelling, Lampard & Co. It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism of the parties: Way v.Way; Kessowji Issar v. The Great Peninsular Railway Co.” (citations omitted).
- It is not disputed that when the respondents purchased lot 3 there was an existing gate at the end of the easement where it joins Repeater Station Road. In early 2018 they constructed a second gate, about 20 metres along the easement from the original gate and fenced the side of the road, creating a 20 metre long rectangle of enclosed roadway. It is thus now necessary to open two gates, twenty metres apart, to access the easement.
- The respondents say this was done to deter sightseers who used to regularly visit the land, often leaving the gate open and thus allowing the respondents’ cattle to wander onto Repeater Station Road. They were also influenced by behaviour of other users of the easement, who, it seems, used to deliberately leave the gate open.
- Two other matters are also of importance in relation to the front gate. The respondents have placed numerous signs on and around the front gate. Clearly they are designed to deter entrants. Some of the signage is offensive. Other signs are innocuous. One sign says “No entry. Private property. Belongs to 294 Repeater Station Road”. This is of course the address of lot 3. Another sign says “Tourists do not have any legal rights on our land. It is our home”. Another sign, an offensive one, says “Warning. No trespassers. Violators will be shot. Survivors will be shot again”. Photos of the gate and signs are Exhibit BPS7 to an affidavit of the applicant.
- Additionally the respondents have constructed an alternative entry gate to the right of the original front gate, as it is approached from Repeater Station Road. This gate is opened only by an electronic gate opener. The applicant complains he has not been given such an opener. I shall refer to this issue shortly. Access via this gate is also restricted to smaller vehicles and not trucks, because of the configuration of timber posts which mark the edges of the roadway for vehicles using this alternative access.
- The applicant, to access the easement, must stop at the original gate, open it, walk about 20 metres to open the second gate, return to his car, drive through and then repeat the process, closing the two gates. Of course if he had an electronic gate opener he would not have to get out of his car. Visitors, including all trucks, who wish to access the easement to reach the applicant’s land need to use the two gate arrangement.
- There is also an electronically opened gate across the easement approximately half way along its length. A gate has been there for many years but the respondents have installed the electronic opening feature. Whilst it can be opened with the same electric “buzzer” as the front gate, there is also a button that allows this electronic gate to be opened by pushing it even by those without a “buzzer”. The applicant agreed in evidence that a gate had been there since at least 2014, but said it was not usually shut. He also agreed however that he used to go to the land only about twice a year. He suggested an appropriate alternative to the electronic gate would be the installation of a grid.
- It seems to me that any real difficulty with this gate, and indeed with the front electronic gate, can be overcome by ensuring the applicant has an electronic gate opener, an inexpensive item. Others, such as visitors to the applicant’s land who might want to come to the property would need to manually open the gates, but the lesser frequency of their visits means, in my view, that to require them to do so is not unduly onerous. Gates are a frequent incident of rural life.
- A suggestion that the solar power to the electronic gates is not sufficient to accommodate the applicant having a “buzzer”, as was suggested by the respondents, in my view is without foundation, particularly as he so rarely visits the land.
- The configuration at the rear of the easement, being that part of lot 3 which abuts lot 5, has also changed over time.
- Recently, in December 2018 a fence was constructed along the easement generally along the eastern side of the access roadway. A receipt from the fencer is dated 19 December 2018. The distance from the eastern edge of the roadway to the fence varies. It is shown in a series of photos being Exhibit MB3.2 to the affidavit of Michael Buckley filed in the proceedings on the sixth of February 2019. I accept the fence was built to keep cattle, grazing on the grass of lot 3 to the east of the roadway, off the roadway itself.
- The easement is itself about 20 metres wide but the exact location of the easement boundary relative to the roadway is unknown. I accept the respondents’ evidence that the part of the easement to the east of the fence line is unsuitable for use by vehicles. It slopes relatively sharply to the east, when compared to the part of the easement to the west of the new fence on which the roadway has been graded.
- The applicant says in his affidavit that the respondents also fenced off an area at the end of the easement where it adjoins lot 5 and put in a further gate, which was only a short distance from the previously existing gate between lots 3 and 5, necessitating him again opening two gates in order to traverse this last section of the easement.
- The applicant says that a consequence of the overall arrangement was that he was required to open five gates to travel the 800 metres from Repeater Station Road to lot 5 – two at the front, the middle gate and two at the rear. I accept that was so and find that constituted an unreasonable interference with his right of way.
- More recently from December 2018, following erection of the fence parallel to the roadway, this arrangement of gates and fences at the end of the easement has changed. The additional gate and the associated fences have now been removed. All that remains now is a fence post within the easement, but it does not seem to me to be a real impediment to users of the easement. It now serves no purpose and can easily be removed.
- It is important also to understand that whilst the first part of the easement is a bitumen road surface, this changes towards the rear of lot 3. Indeed until quite recently there was not even a graded road surface at the end of the easement closest to lot 5. I accept the evidence about that at paragraphs 9 ff of the affidavit of the male respondent filed 11 March 2019.
- In his original affidavit the applicant also complains about the presence of a number of large rocks placed on the roadway and which he said impeded his right of way. Ultimately that issue was not proceeded with, the applicant accepting he does not know who was responsible for placing those rocks on the roadway. Clearly placing such rocks on the roadway was a childish act by someone, but who did so is unknown and I make no finding about it.
- The dispute understandably reached a crescendo when the applicant decided to sell lot 5. He engaged an agent, John Bambling, to sell it for him. Mr Bambling, in an affidavit, says he took five potential purchasers to the property. On each occasion he said he had to take the purchasers through the five gates I earlier referred to and which I have found was an unreasonable burden. I accept he did so. On one occasion access was blocked by the large rocks I earlier referred to. Mr Bambling ultimately concluded that, in the circumstances, it was not possible to sell the property at the proper market value because of the gates, fences and signage, all of which deterred potential buyers. I accept they were real deterrents. The fencing was that adjacent to the rear and front gates. The current fence parallel to the roadway had not then been built. It is easy to see why the gates and fences would have deterred buyers. The property was in such circumstances taken from the market.
- On 20 June 2018 the applicant’s solicitor, Michael Connolly wrote to the respondents. The letter is Exhibit BPS-8 to the affidavit of the applicant filed on 23 November 2018. The letter asserts:
- (i)That the respondents had constructed fences within the easement, at both ends of the easement, which “unduly and unnecessarily delay or interfere with the exercise of [the applicant’s] rights under the easement. Those fences also have gates that serve no other obvious purpose but to restrict those rights”.
- (ii)A gate “constructed” midway along the easement…may have some…utility…but may fall into this category; that is specifically not permitted in the easement.
- It was said these gates are contrary to the grant of easements since they “obstruct” lot 3, “so as to unduly and unnecessarily to delay or interfere with the exercise of the Grantees’ right hereunder.”
- The applicant’s solicitor proposed the removal of the offending gates and fences and provision of three remote gate openers to each of the electronic gates. It seems this has been subsequently misconstrued by the respondents as a demand for six gate openers. This is explained by the fact that Mr Connolly did not understand that the same remote can be used to open both the front electronic gate and the electronic gate midway along the easement.
- Subsequently the male respondent spoke by phone to Chris Anderson, an employee of the applicant’s solicitor. Whilst Mr Anderson has not given evidence about that conversation a further letter from the applicant’s solicitor to the respondents was written on 24 July 2018. It too is part of exhibit BPS-8 to the applicant’s affidavit. The letter again states that “(T)he two gates and fences complained of that you have constructed serve no other purpose but to restrict our client’s access.”
- The letter refers to the fact the applicant’s earlier proposal “has been rejected by you”. I assume this was done orally in the conversation between Chris Anderson and the respondent (or one of them). The letter then says:
“If you wish to avoid such costs please immediately remove the offending fences and gates and supply our client with devices to open the two remaining automatic gates.”
- In a subsequent letter of 30 August 2018 the applicant’s solicitors referred to “our chance meeting with you” on 27 August. The letter states:
“At that meeting you indicated that if a fence could be constructed along the side of the road (which we note is inside the easement boundary) you would be happy to remove the three gates and the ancillary fencing, leaving the front and rear gates as the only impediments to our client’s free and uninterrupted use of the easement.
Our client wishes to investigate whether an agreement along these lines could be arrived at before proceeding with the proposed court action.”
- In that letter the applicant’s solicitors then outlined a possible solution substantially different from that earlier proposed and which depended also on the agreement of other owners who had rights of easement also under separate deeds.
- In a subsequent letter of 11 September 2018 the applicant’s solicitor referred to a phone call he had with the respondents (presumably only one of them) on 4 September. In that letter the proposal contained in the letter of 30 August was said to have been rejected. The solicitor also says:
“You also stated that you required that the myriad of signs you have placed on and around the front gate should all stay. These signs are duplicated, deter genuine visitors and guests who are entitled to use the easement, are generally an eyesore, and one sign which is offensive.”
- The letter states:
“For the record, we note that you have constructed a single automatic gate (for your personal use only) that enables you to bypass the gates and fencing that you have constructed on the easement. That fact alone is indicative that you have constructed the gates for the sole purpose of vexing and obstructing our client and the other neighbours who are entitled to use the easement.”
- The letter continues:
“In order to avoid court proceedings, our client is prepared to make one last proposal to you:
- (a)Our client will, at his cost, fence the front section up to your home (approximately 4 feet from the edge of the bitumen);
- (b)You remove your fencing and gates at both ends of the easement (i.e. the ones you have recently constructed) leaving the front gate and the gate to our client’s property;
- (c)Our client be given a remote access key to all or any automatic gates across the easement;
- (d)You remove the duplicate signs at the front gate and the signs referring to trespassers being shot; and
- (e)You not construct any further obstructions or impediments on the easement (like the gates and fencing that you have already constructed) and that you not place any further unnecessary signs in or around the easement.
The respondents’ case
- The respondents say they purchased the property of 29.6 acres on 23 October 2017 with the intention of using it to graze some cattle. The property was at the time divided into two paddocks, divided by the middle gate earlier referred to.
- The respondents say that after they purchased the property they had problems with particular neighbours – not the applicant – who used to leave the gate adjoining Repeater Station Road open, leaving the respondents’ cattle free to gain access to that roadway. That assertion is supported by the evidence of another neighbour, Bruce Lee. I accept that used to happen.
- The respondents say that to deal with that problem, and that of tourists earlier referred to, they put the second front gate, and buffer zone, at the front entrance.
- The respondents say that tourists used to regularly visit the property and that the two gate system and the signs they put up have significantly deterred them from entering the property. I accept that is the case. Attempting to deter tourists from entering the property seems to me a legitimate purpose. I also accept that the two gate system and the signage is likely to have that effect, although whether it is likely to deter a person from deliberately leaving gates open is much less certain. Surely it is as easy to leave two gates open, when departing the property, as it is to leave one. In any case the system has worked, and tourists less frequently come onto lot 3.
- The male respondent says in his affidavit filed 6 February 2019:
“22. In consultation with the other owners of properties along the easement we put in place an electronic gate so that the other owners would not need to go through two gates to enter the property.
- The cost of the electronic gate was contributed to by the property owners living along the easement. These owners also purchased their own individual buzzers.
- The agreement between us and these owners was that only people who were living alone (sic) the easement would use the electronic gate. This is because the electronic gate is solar powered and is not able to handle frequent use.
- The electronic gate has failed on occasion even with the limited number of uses it has, particularly on days when it is overcast. When this happens we need to access the easement through the two manual gates.
- It is not feasible for us to provide Mr Shailer with six buzzers as he has demanded as the cost of doing so would be prohibitive and the gate would not be able to handle six additional users. We are also concerned about why he would need six buzzers and who he proposes to allow on to our property.”
- In my view the assertion that the applicant required six “buzzers” is at best a misunderstanding, and possibly a deliberate misconstruction of what the applicant had asked for. It is clear from his solicitor’s letter that he was seeking three “buzzers” for the front gate and three for the middle gate, being unaware, as I have already said, that one could open both gates. Furthermore it does not seem to me unreasonable that an owner of lot 5 might require three openers, particularly if he was trying to sell the property and wishes the agent to have one. It also seems that Mr Shailer’s use of the roadway has been minimal, a fact reflected in the fact that “buzzers” were only given to those who resided along the roadway. If however Mr Shailer was to sell his property, any purchaser might want to live on the property and ought to have the use of a “buzzer” if the electronic gates are to remain.
- It is curious that nowhere in the respondents’ affidavits do they address the fact that the applicant was not part of any discussion concerning the provision of “buzzers”. This is particularly so in view of the correspondence from the applicant’s solicitor earlier referred to. I would have thought that upon receipt of that correspondence the respondents would have immediately offered him an electronic gate opener, subject to determination only of what I see is a very minor question of who should pay for it.
- The fact that no such offer was made does cause me to conclude that the respondents have been deliberately hindering the applicant’s use of the easement.
- In relation to the middle gate, the male respondent says (and it was not disputed):
- the gate was present when the respondents purchased the property; and
- it has been subsequently updated by making it open electronically either by using an electronic opener or by using the button which opens the gate and allows it to close automatically once one passes through it.
- The respondents also say that after they moved to the property gates were left open and fences damaged at the rear of lot 3, where it adjoins lot 5. The male respondent says that, as a result, cattle strayed from his property onto the applicant’s property where they proved difficult to locate and muster. He says that as a result the gates and fences at the rear of the property were reconfigured by putting in an additional fence and a second gate to overcome the problem of straying cattle. He says that the applicant subsequently “destroyed our borderline fencing and installed metal fencing”.
- I do not understand the meaning or importance of this assertion, or why metal fencing would be a problem. In my view to have reconfigured the fences so as to require the applicant and others to open two gates at the rear of the easement was an unreasonable interference with the applicant’s right of way.
- In any case the additional back gate was removed in December 2018 after the fencing alongside the roadway was completed as I earlier described.
- The respondents also say that due to problems which have arisen concerning the easement it is their intention to fence the entire easement. The male respondent says this process was commenced by fencing the easement along the back paddock, as earlier described. When this whole process is complete he says the configuration of gates at Repeater Station Road may not be required in its present form.
- Bruce Lee is the owner of lot 2, Repeater Station Road. His property also benefits from an easement over lot 3. In an affidavit filed in the proceedings he supports the respondents’ evidence about the problem of tourists coming along the easement and says the two gate arrangement at the front of lot 3 “tends to keep tourists out”. He says such entrants can be a problem and caused him concern about security.
- I accept that tourists would have been a real problem and that the two gate system and signage is a deterrent to them entering onto lot 3.
- Mr Lee also says that “all of the residents contributed to the cost of the automatic gate and paid for their own buzzer”. The male respondent says, and I accept, that the cost of a buzzer is about $40.00.
- The female respondent in her affidavit filed on 6 February 2019 says that prior to the installation of the two gates at the front of the property they “would have up to 50 cars a week coming along the easement”. Since the two gate system has been built she says that cameras, which have been installed, show “multiple vehicles each week turning around outside the gates”. I accept that is so. Some such still images are set out in Exhibit SG-3 to her affidavit and were taken over the period between 8 and 22 September 2018. This is consistent with my finding that the gates were designed to, and did, deter tourists from coming onto the easement and adjoining properties.
- I also accept the evidence from the male respondent that access to lot 5 on the rear section of the easement “would have always been difficult for any vehicle, including (a) 4WD to access due to the nature of the track being grass and dirt…we have improved the access by adding road base to the track…up to the part…where Mr Hunter’s property is located.” This is about half way, roughly, between the middle gate and the end of the easement where it abuts lot 5.
- The male respondent refers to three or four vehicles becoming bogged in that section of the easement over his time on the property. The female respondent also says that there was initially no road access to the rear of the easement. It seems that vehicles merely drove over the grass – suitable in dry weather, but causing difficulties when it rained.
- The respondents have now graded the dirt to the west of the new fence line, as shown in photos being Exhibit SG-2.3 attached to the affidavit of a female respondent filed on 11 March 2019. These photos also clearly display the slope of the land to the east of the roadway which makes utilisation of this area of the easement impossible or certainly very difficult for vehicles. This slope is given by the respondents as a reason why the new fence was located where it is. I accept their evidence about the fence and roadway in this area, and about the slope of the land.
- The questions to be determined are stated by the parties in not dissimilar language. Counsel for the applicant says the issue is whether the various matters – namely the two front gates, signs on those gates, the middle gate, the fence parallel to the graded road at the rear of the easement and the protruding section of fence near to the gate to lot 5 and the second gate that were initially built in this area, and what was said to be the refusal to give to the applicant an electronic device to enable him to operate the electronic gates – separately, or in combination, constituted a breach of the easement and are a real and substantial interference with the applicant’s right of way over the easement.
- The respondent’s counsel pose the issues in this way:
- Does the grant of easement prohibit the placing of gates or fences on along the easement;
- If not, do the fences, gates and signs constitute a substantial interference with the applicant’s use of the easement; and
- If so, what relief would be granted.
- In my assessment, to have required the applicant, in order to access his property to open five gates constituted an unreasonable interference with his right of way, even taking into account my findings as to the purpose of the gates at the front of the easement.
- To have erected a second gate at the front of the property as described in these reasons to deter sight seers from coming onto the property was an understandable response to the problem of sight seers. Building an electronic gate, which sight seers but also legitimate visitors could not access, was a suitable solution to the consequent interference with the rights of the respondents and the dominant tenement owners. The use of the front electronic gate and also the middle electronic gate would not have constituted an unreasonable interference with the applicant’s right of way if he had been provided with an electronic gate opener. The failure to have provided such an opener, indeed to have even offered to do so, means in my view that the applicant’s right of way was unreasonably interfered with. He should have been provided with such a device from the time the electronic gate was built at the front of lot 3 and the electronic opening device placed on the middle gate. The cost of the electronic opener is so little that the issue of who should pay it is largely irrelevant. For the purposes of averting future conflict I determine that the applicant should pay for such devices, but should be entitled to receive up to three electronic gate openers configured to allow him to open both the front and middle electronic gates. I do not think requiring him to pay a small sum is unreasonable, having regard to the problem that sight seers posed.
- I do not find the fence towards the rear of the easement and running parallel to the easement unreasonably interferes with the applicant’s right of way. There is a graded section of the easement to the west of the fence sufficient to allow vehicles to travel along it. If a wider vehicle needs to utilise the track it can be widened by the applicant or more probably the vehicle can drive with its wheels on the grass to the west of the graded track.
- In my assessment, that does not constitute an unreasonable interference with the applicant’s right of way, particularly as there was no graded track in that area until the respondents graded one.
- The issue at the rear of lot 3 appears now to have been resolved. I do not see why it was ever necessary to build a second gate and a fence at the rear of the premises. There was no issue with sight seers at this end of the property, as there was at the front gate. I do not see how issues with the respondent’s cattle passing through the fence onto the applicant’s land would not have been better addressed by rectification of the existing fence between lots 3 and lots 5 and do not see how it was relevant to alleged criminal activities in that area by unknown persons. The second gate and additional fence in that area were unjustified as they did unreasonably restrict the applicant’s ability to access his land and so constituted an unreasonable interference with the right of way.
- I also find that the erection of the five gates to which I have referred, in combination, would have deterred potential purchasers of lot 5. The unsavoury nature of one of the signs at the front gate would also have done so.
- At the time proceedings were instituted on 23 November 2018, the applicant had not received and had not been offered any electronic gate opener. The configuration of fences and gates at the rear of the property also constituted an unreasonable interference with his right of way at that time.
- Removal of this rear section of fence and the second gate near to the entry to lot 5, and the provision of electronic devices and the removal of the unsavoury sign would have obviated all unreasonable interference with the applicant’s right of way.
- In correspondence between the parties, it is my view that neither party has been entirely reasonable. The respondents, as I have said, have not provided or offered to provide electronic openers to the applicant, necessitating him opening five gates, at least up to about Christmas 2018, and thereafter four gates, to access his property. In my view, that was an unreasonable interference with his rights. Correspondingly, at all times the applicant has sought a solution which involved not only the provision of electronic devices to open the gates but also removal of all fences and gates at both the start and end of the easement and the removal of the fence roughly parallel to the eastern boundary of the graded section of roadway at the back of the easement and of the middle gate. The assertion by the applicant that the gates “served no other obvious purpose but the restraint of (the applicant’s) rights” overlooks the problem of sight seers entering onto the property. The demand by the applicant to “remove the offending fences and gates” in my view was inappropriate, in relation to both the front and middle gates and to the subsequent fence in the rear section of the easement.
- The provision of three electronic gate openers would have overcome the unreasonable interference with the applicant’s right of way, other than that constituted by the rear section of fence and gates which was removed on 18 December 2018.
- I do not see that any of the proposals contained in letters from the applicant’s solicitor or to be inferred from reference in those letters to discussions between the respondents’ and the applicant’s solicitors, indicate that either party has been entirely reasonable in seeking to reach a resolution to the problem.
- Ultimately I conclude that up to the end of 2018 the respondents unreasonably interfered with the applicant’s right of way by not making electronic devices available to him to enable him to open the electronic gates at the front and middle of the easement and also by the configuration of gates and fences at the rear of the easement. From that time the gate and fences at the rear of the easement have been removed and the only remaining impediment relates to the non-supply of the electronic gate openers.
- At no time did the respondents offer to provide such electronic devices to the applicant, even at his own expense. Their assertion that the only people who resided along the easement could use the electronic gate openers was in my view an unreasonable interference with the applicant’s rights. The applicant however unreasonably demanded removal of the front and middle gates and of the fence constructed in December 2018.
- In my initial reasons I intimated I would hear submissions as to the form of orders I should make consistent with these reasons but envisaged orders that:
- Upon payment of $120 (or such actual sum as the items cost) the applicant be provided by the respondents with three electronic gate openers and I direct that the respondents configure those gate openers so that they can each open both the front and middle electronic gates on the subject easement.
- The respondents remove from the area of the front gate the sign referred to in  hereof concerning shooting of trespassers.
- The respondents’ pay to the applicant 25% of his costs of the action.
- I indicated my initial view that this costs order was appropriate where I had found neither party adopted an appropriately conciliatory response to the issues that I have addressed in the reasons. It is in my view absurd that a matter such as this comes to the court for determination and is not resolved amicably and cost effectively. Both parties have contributed to that situation, but in my view the respondents bear the greater share of responsibility.
- Subsequently the parties each provided written submissions, agreeing that, apart from the costs order, it was appropriate to order:
- Within 21 days from the date of this order, and upon payment to the respondents’ solicitors, Neilson Stanton and Parkinson, of the sum of $120.00 (or such actual sum as the items cost) by the applicant, the respondents shall provide to the applicant’s solicitors, Jeffery Cuddihy and Joyce, three electronic gate openers that are configured so that each of those gate openers are able to open both the front and middle electronic gates on easement C an easement E on Registered Plan 145290 in the County of March, Parish of Gutchy, being part of the land described as Lot 3 on Registered Plan 149500 contained on Title Reference 16105134 and benefitting Lot 5 Registered Plan 219695 in the County of March, Parish of Gutchy, on Title Reference 17154084 (“Easement”).
- Within 14 days from the date of this order, the respondents remove from the area of the front gates at the Repeater Station Road end of the Easement, the sign that states:
WILL BE SHOT
WILL BE SHOT
- I so order.
- The applicant further submitted that I should order the respondents pay the applicant’s costs of and incidental to the proceedings on a standard basis. The respondent advocated for the costs order I had earlier foreshadowed.
- In support of his position counsel for the applicant submitted, in essence:
- The applicant was substantially successful and it was necessary for him to bring the application.
- The applicant “did all that was reasonably within his power” to resolve the matter but the respondents simply did not respond to reasonable proposals, or rejected them outright.
- The position when the application was filed was untenable to the applicant and the applicant had no option other than to seek relief from the court.
- The fence built towards the rear of the easement (which, contrary to the applicant’s submission at trial, I made no orders about) was built only after proceedings had been commenced and, for a period after its construction and before the grading of a new track, the easement was unnavigatable.
- In circumstances where it was necessary to bring the application, and the respondent showed no interest in resolving the matter, costs should be allowed in the usual way.
- Counsel for the respondent supported making the order I had foreshadowed submitting:
- That to remove all gates along the easement, as the applicant had sought, was “completely unreasonable” as the plaintiffs used to graze cattle on the property, yet that is the order sought in the originating application. Counsel also submitted that the creation of the two gate buffer system at the front gate, as discussed in the reasons, was useful for control of both cattle and tourists trespassing on the property.
- Although the parallel fence in the rear of the easement was built after the filing of the application it was a significant issue at trial and was resolved in the respondent’s favour.
- I have reconsidered the four letters from the applicant’s solicitors of 20 June, 24 July, 20 August, 11 September 2018. All letters sought a way to resolve the dispute. I accept they were expressed in conciliatory terms. The respondent despite being asked to do so either did not respond or responded only in cursory way, and not in writing. No counter proposal to resolve the dispute was sensibly made.
- I have ordered in my reasons that the applicant should pay for the electronic gate openers – but whether he or the respondents did so is largely inconsequential as I made clear in those reasons. The respondents did not offer to make buzzers available to allow the respondent reasonable access, and the dispute did not concern, so far as I can discern, who should pay for them, but whether the applicant should be provided with them.
- The provision of these buzzers was a critically important issue and if it had been resolved – as it ought to have been if the respondents had acted reasonably – much of the dispute would have dissipated.
- The respondents’ objection to providing electronic gate openers because of a limitation of available solar power was, as I found, a position that did not have any proper foundation.
- Prior to erection of the rear fence parallel to the roadway, the respondents had erected, and subsequently dismantled, an arrangement where a buffer zone was created not dissimilar to that of the front of the property. This construction at the end of the easement caused significant interference to the applicant’s right of use of the easement at a point where he would have otherwise have passed onto his own property.
- Ultimately I accept the respondents showed almost no willingness to negotiate a suitable resolution to a difficulty they had created. Whilst I have some sympathy for their need to have kept trespassers off the property, and cattle on it, in the circumstances I accept litigation was a direct consequence of their unreasonable actions in not providing electronic gate openers to the applicant. The issue concerning the rear parallel fence about which the applicant was unsuccessful and the minor issue of signs that I did not order to be removed perhaps protracted the litigation, but were not of pivotal importance.
- Ultimately I have been persuaded by the further written submissions that the respondents should be ordered to pay 60 per cent of the applicant’s costs of and incidental to the action.
- 1. Within 21 days from the date of this order, and upon payment to the respondents’ solicitors, Neilson Stanton and Parkinson, of the sum of $120.00 (or such actual sum as the items cost) by the applicant, the respondents shall provide to the applicant’s solicitors, Jeffery Cuddihy and Joyce, three electronic gate openers that are configured so that each of those gate openers are able to open both the front and middle electronic gates on easement C an easement E on Registered Plan 145290 in the County of March, Parish of Gutchy, being part of the land described as Lot 3 on Registered Plan 149500 contained on Title Reference 16105134 and benefitting Lot 5 Registered Plan 219695 in the County of March, Parish of Gutchy, on Title Reference 17154084 (“Easement”).
- Within 14 days from the date of this order, the respondents remove from the area of the front gates at the Repeater Station Road end of the Easement, the sign that states:
WILL BE SHOT
WILL BE SHOT
- The respondents pay 60% of the applicant’s costs of and incidental to this proceeding on a standard basis.
- Published Case Name:
Shailer v Buckley & Anor
- Shortened Case Name:
Shailer v Buckley
 QDC 161
30 Aug 2019