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Naylor v Pierce

 

[2010] QSC 399

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

22 October 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

6, 7, 8 October 2010

JUDGE:

McMeekin J

ORDER:

The application is dismissed.  The applicants are ordered to pay the first respondent’s costs.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – RIGHTS OF WAY – CREATION – where the applicants seek the imposition of an easement including a right of way over the land of the respondents pursuant to s 180 of the Property Law Act 1974 – where the second respondent did not participate in the proceedings – where the first respondent requested that the applicants not enter his land after the expiry of a temporary access agreement – where the applicants subsequently trespassed – whether the applicants were aware that legal access to the land was not available at the time of purchase – whether the imposition of a statutory right of user is “reasonably necessary” – whether the respondent could be adequately recompensed in money for any loss or disadvantage which the respondent may suffer from the imposition of the easement – whether the respondent’s refusal to accept the imposition of the statutory right of user was unreasonable

Land Act 1994 (Qld), s 94(2)

Land Title Act 1994 (Qld), 184

Property Law Act 1974 (Qld), s 180

Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86

Grittner & Anor v Hadley [2008] QSC 268

Lang Parade Pty Ltd v Peluso & Ors [2005] QSC 112; [2006] 1 Qd R 42

Lynch v White (1987) Q Conv R 54-257

Re Hodgskin [1999] QSC 225

Tipler v Fraser [1976] Qd R 272

Tran & Anor v Cowan & Ors [2006] QSC 136

COUNSEL:

A. Mellick for the applicants

L. Nevison for the first respondent

SOLICITORS:

Thynne & Macartney for the applicants

Edgar & Wood for the first respondent

[1] McMEEKIN J:  The applicants, Mrs Julie Naylor and her brother Mr Lorne Barrett, are the registered proprietors of land, known to them as “Tabgha”,[1] which abuts land of the respondent, Mr Morris Pierce, referred to in the evidence as “the Pocket”.[2]  The applicants seek the imposition of a statutory right of user, in the form of an easement including a right of way, over the Pocket on the basis that their land is landlocked.  Mr Pierce opposes the order being made. The right that the applicants seek also affects a small parcel of land in which the second respondent, Mr Walter Richard Pierce, has an interest[3] (which I will call “Lot 1”) but he has taken no active part in the proceedings and has indicated that he will abide the order of the Court.

[2] The power to make an order of the type sought by the applicants is governed by s 180 of the Property Law Act 1974 (“the Act”).  The applicants must show that the imposition of the right of user is “reasonably necessary in the interests of effective use in any reasonable manner” of the dominant land.  Section 180(3) of the Act provides that an order of that kind shall not be made unless the court is satisfied that it is consistent with the public interest that the dominant land should be used in the manner proposed, the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation and the owner of the servient land has refused unreasonably to agree to accept the imposition of that obligation.

[3] In Lang Parade Pty Ltd v Peluso & Ors,[4] Douglas J, adopting the submissions made to him, summarised the relevant principles to be applied on an application such as this:

 

(a) One should not interfere readily with the proprietary rights of an owner of land;

(b) The requirement of “reasonably necessary” does not mean absolute necessity;

(c) What is “reasonably necessary” is determined objectively;

(d) Necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree;

(e) The greater the burden of the imposition that is sought, the stronger the case needed to justify a finding of reasonable necessity;

(f) For a right of user to be reasonably necessary for a development, the development with the right of user must be (at least) substantially preferable to development without the right of user;

(g) Regard must be had to the implications or consequences on the other land of imposing a right of user.

[4] It is not in issue here that the only effective use of the applicants’ land is for grazing purposes, as the applicants propose. Nor does the respondent contend that the running of about 200 head of cattle on the land, as is presently done by the applicants, would be using the land in an unreasonable manner. 

[5] The applicants contend that their case is a straightforward one. Their land they claim is landlocked; the route they seek to enjoy over the respondent’s land has been enjoyed by previous owners with the respondent’s leave and licence for 35 years and prior to that with the leave and license of his predecessor in title, his father, since the 1950s; any alternative proposal would require substantial expenditure and is dependent on uncertain tenure; and their experts maintain that the use that they would make of the respondent’s land would have minimal adverse impact on him.

[6] However, a closer examination of the facts indicates that the assumptions underpinning the application are not as clear as the applicants would have it.

[7] The respondent contends that the imposition of the right of user is not “reasonably necessary” in all of the circumstances.  The respondent further contends that whilst he has refused the imposition of the right of user, that refusal was in all the circumstances not unreasonable.

A Description and History of the Lands

[8] The respondent inherited the Pocket when his father died in 1975.  Mr Pierce is now aged 75 years.  He has been familiar with the land for most, if not all, of his life.

[9] Tabgha comprises 1770 acres. It was acquired by the applicants by contract dated 14 May 2009. It abuts the eastern boundary of the Pocket.  By the same contract the applicants became the lessees of certain Crown leasehold land lying to the north and south of Tabgha.[5]  Those parcels are also adjacent to the Pocket. Those leases expire in four years time.  I shall refer to them as Crown Lots 6 and 7 respectively.

[10] There are two road reserves which lie on the boundary of the Pocket.  One is to the west and north and the other to the south of the Pocket.   While each road reserve abuts one or other of the crown leasehold lands held by the applicants the only one relevant to the proceedings is that to the south. It is common ground that the one to the west and north (and referred to in the affidavits as the “River Road”) is not trafficable and has not been trafficable in Mr Pierce’s lifetime. 

[11] These parcels of land lie about 15 kilometres off the Bruce Highway, near Midgee, a short distance to the south of Rockhampton.  Access from the highway is obtained along Casuarina Road which arrives at a gate on the western boundary of the Pocket.  The southern road reserve runs from that gate along the western boundary of the Pocket to the second respondent’s land to the south, then along the southern boundary of the Pocket in an easterly direction to the boundary of Crown Lot 7. The road reserve abuts the northern boundaries of the lands of Richard Pierce, the second respondent, and Allan Pierce, a cousin of the respondent.

[12] The Pocket is generally flat country, low lying and prone to flooding.  Towards its northern boundary it is subject to the intrusion of salt water due to tidal inundations from the Fitzroy River.

[13] The southern road reserve has a swampy area which covers about 300 to 400 metres of its approximate 2.6 kilometre length.  Mr Shanahan, a surveyor, estimated the water in the area to be two to three feet deep. He has seen the land on two occasions, in March and June 2010.  Mr Pierce, who of course has great familiarity with the land, disputes the depth but agrees that the area can be inundated.  Mr Pierce maintains that the track across the Pocket, over which the applicants seek the imposition of the statutory right of user, traverses land that is similarly affected.

[14] Crown Lot 7 is affected by tidal inundations from the Fitzroy River, more or less on a daily basis and is also affected by flooding at times.  The area adjacent to the south eastern boundary of the Pocket, and which abuts the southern road reserve, is essentially mud flats and devoid of vegetation due to the incursion of salt water.

[15] The applicants’ case is, to a significant extent, based on the premise that the “historical access” to their land has been across the respondent’s land, from the gate on the western boundary, on what they describe as a “private road”.  That claim somewhat overstates the case.

[16] I was taken on a view. The “private road” is more accurately described as a bush track, a path initially made by the wheels of vehicles over the years. As Mr Pierce describes in his affidavit, the route taken over his land has varied over the years as conditions have changed and as his family have sought to traverse the best available high ground.  It is evident that this can vary over time. Indeed on the day of the view paths were sought around boggy areas of the track. Mr Naughton’s evidence confirmed that was normal after significant rain.[6] The whole of the land is subject to periodic flooding.  The road itself can become inundated and the entire parcel of land impassable and inaccessible, at least by vehicle.  Because of the effects of inundation the track can become damaged and Mr Pierce has, over the years, been required to upgrade the track by dumping gravel on it and has, at times, expended considerable sums of money to maintain it.

[17] The claimed “historical access” to the applicants’ land has never amounted to more than the leave and license of the Pierce family. 

[18] That leave and license was initially granted following the 1954 flood. It would appear that when first subdivided, and until that time, there was access to the block that the applicants call Tabgha along the River Road from Casuarina Road. The need to use some alternative route came about following a movement of the Fitzroy River and the washing away of part of the access from the highway, including the River Road. It has since been impassable.  Rather than resume land and establish a public road to restore access to the blocks affected – and the land affected by the erosion of the previous access is not restricted to the applicants’ land – the Council of the day extended Casuarina Road through the property of a Mr Edward Pierce, father of the existing owner, Mr Robert Pierce.  Casuarina Road, as a public road, then and since, has run either side of Mr Edward Pierce’s property.  That solved the problem of access for blocks to the west of Tabgha.[7]  The owner of that block at the time, a Mr Daly, was apparently not greatly concerned as he accessed his block mainly by river and made few requests for permission to cross the Pocket.

[19] Mr Pierce details the history of the subsequent use of his land.  What commenced as a neighbourly gesture has, over the decades, become an assumed right.  This has obviously been a considerable source of irritation to Mr Pierce and of disputation with some of the previous neighbouring owners.  Keys to gates have been distributed to neighbours’ friends and acquaintances, the property accessed for purposes other than the legitimate pursuit of the owners’ grazing businesses, volumes of traffic have increased with consequent deterioration of the track, and use made of the track across the property in a manner that has caused disturbance to Mr Pierce’s grazing operations.

The Genesis of the Dispute

[20] Matters came to a head when Mr Pierce learnt that the applicants’ predecessor in title, Mr Brian Naughton, intended to sell Tabgha to the applicants. Mr Pierce advised Mr Naughton that in future access would not be permitted across the Pocket and other arrangements would need to be made. 

[21] Mr Naughton then determined to build an access road across the southern road reserve and Crown Lot 7.  Despite having no obligation to do so, Mr Naughton engaged a private contractor and expended some $15,000 on the construction of a road formed from local materials. The work took place both before and after settlement of the contract of sale to the applicants.  Mr Naughton instructed his solicitors that about one and a half kilometres of road remained to be constructed at settlement.

[22] While the work was being completed Mr Pierce agreed that access could be obtained over the Pocket but in a new and different location to the access track previously used. This arrangement was expressly said to expire on 31 October 2009.  This alternative access was from the southern road reserve along the south-eastern boundary of the Pocket and adjacent to the boundary of Crown Lot 7, across what some witnesses called a claypan.  The agreement is set out in a letter written by Mr Naughton and dated 28 June 2009 marked “Attention Judy” - a reference to Mrs Naylor.  The applicants made some use of that alternative access in the early part of their occupation.

[23] From 31 October 2009, Mr Pierce endeavoured to insist on his rights and prevent the applicants crossing his land. The applicants treated his rights with a contumelious disregard.

[24] It is common ground that the applicants ignored Mr Pierce’s requests not to enter into his land after the expiry of the temporary arrangement, trespassed on the Pocket on a number of occasions, and chain-sawed Mr Pierce’s gate when it prevented entry to the Pocket.  They only ceased to enter onto Mr Pierce’s land when the police intervened following a complaint by Mr Pierce. Mrs Naylor was found guilty of certain criminal charges following on Mr Pierce’s complaints. Mr Pierce complains that other damage has been caused to chains that he has placed across the gate and to locks placed on those chains. I am confident that the applicants have been responsible for that damage.

What did the Applicants Know About Access to the Land?

[25] There is a factual conflict as to the state of the applicants’ knowledge concerning the availability of access across the respondent’s land at the time of purchase. It is plain that Mr Barrett largely left matters to Mrs Naylor. It is her knowledge that is in issue. While Mrs Naylor accepted that she was at all times aware that legal access was not available to the land that she was purchasing, she would have it that she was unaware that Mr Pierce had indicated that access across his land was not acceptable to him.  Her evidence on this, as on many issues, was not precise. She said that she learnt either after settlement, or two days before settlement, that Mr Pierce was being “difficult”.[8]

[26] I am satisfied that her claim is false and that she was well aware of the true state of affairs, namely that access was being denied, long before that stage was reached, and probably around 14 May 2009. I so find for two reasons – what objective evidence there is suggests that her knowledge dates from around 14 May; and I formed an adverse view of Mrs Naylor’s credit. I thought that Mrs Naylor would say anything to suit her case.

[27] I should first record that Mrs Naylor made a very poor impression in the witness box. She constantly fenced with counsel, avoided answering questions, and was argumentative and evasive. 

[28] Secondly, it was plain that Mrs Naylor set out to deliberately mislead by making false allegations about Mr Pierce’s conduct towards her.  In her first affidavit Mrs Naylor annexed summaries of diary notes that she maintained she had kept of relevant events.  On 31 March 2010, she records receiving a telephone call from Mr Pierce. Her version in the diary notes is that Mr Pierce inquired as to why he should let her go though his land, she asserted that that had been the access since before 1955, and in response to Mr Pierce “continually asking why he should let us go through” she told him that she would take him to Court whereupon Mr Pierce “replied[9] ‘I’m going to get you Naylor’” and she then hung up.  The diary entries were plainly annexed in the expectation that they would be accepted as an accurate, contemporaneous record.

[29] Unbeknownst to Mrs Naylor, Mr Pierce recorded the conversation.  The recording was played in the course of the evidence and a transcript tendered. Mr Pierce made no threat to “get” Mrs Naylor. He at no time spoke other than in a reasonable tone and in a respectful way to her.  Thus her dishonest purpose was thwarted.

[30] Thirdly, the documents tendered by agreement from the files of the two firms of solicitors acting on behalf of Mr Naughton and the applicants respectively in relation to the sale make it reasonably plain that Mrs Naylor knew more than she was prepared to  let on. A file note completed by the solicitor acting for Mr Naughton and dated 14 May 2009 records Mr Naughton’s attendance that day to execute the contract of sale.  It includes: “He had lunch with buyers today. They know about the road”.  No suggestion was made that the reference to the “road” could, in the circumstances, be to any road other than the one that Mr Naughton had determined to construct because there was no access across the Pocket.

[31] Then in another file note the same solicitor has recorded on 22 June 2009: “Buyers okay with access. Brian spent about $10k there in last week. Not finished but buyers will finish”.  Again that is plainly a reference to the road that Mr Naughton was constructing on the southern road reserve and across Crown Lot 7.

[32] Then on 29 June a further file note (apparently prepared by a secretary) records Mr Naughton requesting that a letter be written to the applicants recording the temporary access arrangement with Mr Pierce.  The note records: “Mr Naughton said that he just wants to make sure that Mr Pierce continues to allow access across his property until the road is constructed.”

[33] On 30 June 2009, Mr Naughton’s solicitors wrote to the applicants’ solicitors.  Amongst other matters the solicitors sought the agreement of the applicants that they provide access to the land to enable the road works to be completed, a release from any liability in relation to the construction, and an indemnity in respect of any claims made against him in relation to the construction. 

[34] According to the applicants’ solicitors file their solicitor, Mr Grant Ireland, met with Mrs Naylor the following day to discuss the letter of 30 June. Mr Ireland prepared a file note on 1 July in which he recorded the substance of his conversation with Mrs Naylor that day. The note recorded the receipt of the letter of the day before from Mr Naughton’s solicitors, Mrs Naylor’s knowledge of the history of access to the land she was purchasing, and includes: “The contract was unsigned when first presented to me and Julie confirmed her knowledge of the current access issues both prior to signing and again on the 1st July…”.  Mr Ireland recorded that he had instructions to write back to Mr Naughton’s solicitors and confirm agreement with the terms proposed in their letter. In accordance with those instructions Mr Ireland wrote back that day stating that the applicants agreed to all three terms requested.

[35] The contract settled on the 2nd July 2009.

[36] Mrs Naylor claimed to know nothing of the letter of 30 June 2009 or its contents. She claimed to know of no response being made to that letter by Mr Ireland.  She denied giving the instructions that Mr Ireland had recorded in his contemporaneous file note. She denied receiving a copy of a letter in Mr Naughton’s handwriting marked “Attention Judy” detailing the temporary access arrangements agreed to by Mr Pierce. While she knew at some time of these temporary arrangements she said that she assumed that was simply a matter between Mr Naughton and Mr Pierce and of no concern to her.

[37] Those claims are plainly false. Mr Nevison, who appeared for the respondent, submitted, and Mr Mellick, who appeared for the applicants, did not demur, that I should assume the accuracy of the file memos. If that assumption was not right, and the contents of these file notes were false or inaccurate, then Mrs Naylor has been singularly unfortunate. She has the unhappy coincidence of a vendor in Mr Naughton making up stories to his solicitors, or solicitors who wrongly recorded whatever Mr Naughton was telling them, along with her own solicitor falsely, or grossly negligently, inaccurately recording his conversation and instructions from her, and him then being prepared, contrary to his duty to her, to expose her personally to liability for a third parties’ actions without her knowledge.  As well her solicitor has wrongly recorded matters which to an extent coincide with the supposed inaccurate record of Mr Naughton’s solicitors in some instances. So many unhappy coincidences seems highly improbable.

[38] Mr Ireland’s note of 1 July to the effect that Mrs Naylor was aware of the “access issues” before signing confirms Mr Naughton’s solicitors’ note of 14 May that the applicants were aware of “the road”. No suggestion was made to Mr Naughton that he had made up stories to the solicitor – that the applicants knew about the road on 14 May, that the buyers were okay with the access on 22 June, and that they would finish the construction that he had started as at 22 June.  No reason was suggested as to why Mr Naughton would wish to construct the road over the southern road easement or Crown Lot 7 to access Lot 1777 after he had sold it other than to assist the applicants in securing access to the land they had purchased. As he remarked in his evidence the agreement was of no benefit to him. Mrs Naylor’s claim that the arrangement was merely something between Mr Naughton and Mr Pierce and of no concern to her was patently ridiculous. The whole point of the temporary arrangement was to ensure that the applicants had some access to their land until the road was built to give them access around the Pocket.  I am quite confident that Mrs Naylor was well aware of the reason for the construction of the road that Mr Naughton undertook at considerable cost to himself and which he commenced only very shortly before his interest in the land terminated.

[39] Hence I am satisfied that the applicants purchased knowing that they had no access across the respondent’s land.  That finding is not fatal to the application but merely one of the relevant factors to weigh in the balance.[10]

Is the Imposition of a Statutory Right of User Reasonably Necessary?

[40] With those background facts I turn then to the first of the questions that I must consider.  The applicants must show that the imposition of the right of user is “reasonably necessary in the interests of effective use in any reasonable manner” of their land.

[41] The applicants’ case depends on two fundamental propositions. The first is that their land is effectively land locked and the second is that even if that were not so the costs of going around the Pocket are prohibitive.

[42] The claim that the land is land locked is not accurate, at least for these applicants. The true position is that the applicants can access the southern road reserve and from there Crown Lot 7.  It is only if the applicants are unable to renew their lease over Crown Lot 7 in four years time that they will be unable to access Tabgha from that southern road reserve.

[43] The respondent’s submission is that it is simply unknown what restrictions on access there might be due to lack of a legal right to access the Crown land abutting Tabgha as the applicants have made no application to the relevant Minister to have a road dedicated across Crown Lot 7 as they could do pursuant to s 94(2) of the Land Act 1994.

[44] Mr Mellick relied on the present conditions of the lease.  One condition is that all improvements are to be removed on expiry of the lease.  Obviously that does not encourage expenditure of significant sums. He pointed out that the conditions of the lease included a provision that the lessees effect no “structural improvements” on the leasehold area. “Structural improvements” is not defined.  But it was not demonstrated what the attitude of the Crown might be if approached to consider the access difficulties. It is well accepted that it is against the public interest that there be “dead land or land locked land”.[11]  The Crown presumably is as much informed in its decisions by that principle as are the Courts.

[45] It is known that the local Council consented to the formation of the roadworks over Crown Lot 7 by Mr Schwarz at the behest of Mr Naughton. Those roadworks were suited to dry conditions not wet, but there is no evidence that an upgrade to the standard of track across the Pocket would not be acceptable.

[46] Thus the applicants’ case, at least at the present point in time, is that although they have access available across land they are entitled to enter, it is not convenient to use that route because of the prohibitive cost of doing so and because it might be found at some future time that the Crown will refuse to renew the lease, or otherwise accommodate the construction of reasonable access, thus causing a waste of expenditure and a need to again address these issues.

[47] To support that proposition the applicants obtained an opinion as to the costs of providing a road along the southern road reserve and across Crown Lot 7 from civil engineers.  Those engineers estimated that it would cost approximately $1.2 million to provide a road. The applicants purchased Tabgha with cattle and some equipment for $750,000.  If the true cost of gaining access was as asserted then it is disproportionate to the value of the lands in question and disproportionate to any possible adverse impact on the respondent.

[48] The difficulty with the engineers’ opinion is in the standard of road assumed. The track across the Pocket is nowhere near to the standard of the road that the engineers have envisaged. The engineers have costed a road that would comply with council standards for the shire.  I make no criticism of the engineers – they have complied with their instructions – but the true issue is: What would it cost to provide access to the same standard as is presently achieved across the Pocket?

[49] That issue is not addressed by the applicants’ material. 

[50] Indeed, it is difficult to follow Mrs Naylor’s attitude on this issue. She was cross examined about her expectations. She gave the following evidence:

“If it was possible to build a structure on lot 7, by using material and placing gravel on it, to provide you with access under all reasonable conditions such as you might have across The Pocket, from the house and the yard through to your boundary, you'd embrace that, wouldn’t you? --  If a road could be built across that    

Yes? --    built - that would sustain all traffic under all conditions, 24 hours a day, seven days a week, continuously for 20 years, yes.”[12]

[51] The access across the Pocket does not provide access to anywhere near that level. At best the traffic that can use the track across the Pocket will be restricted. When conditions are adverse the Pocket is simply inaccessible and the track impassable.

[52] It is common ground that with the work paid for by Mr Naughton there is no problem with access across the southern road reserve save for the 300 to 400 meters of boggy area. Mr Pierce’s argument is that he has coped with similar conditions as prevail in that boggy area on the southern road reserve in his construction of the track across the Pocket. He has done so by the expenditure of substantial sums and work over the decades. The applicant has not shown these assertions to be wrong. 

[53] Similarly, the conditions that prevail on Crown Lot 7 are comparable, Mr Pierce maintains, to an area on his property that he calls the “Marsh”. It lies to the north-western boundary of the Pocket. That too is subject to tidal influences from the Fitzroy River.  He has constructed a road there sufficient to enable him to access his cattle and operate a cattle truck in most conditions across what he calls “mangrove saltpan country”.  Again it is not shown that he is wrong in his claims that the conditions are comparable.

[54] Is it reasonably necessary to expect the respondent to suffer an imposition on his rights to enable the applicants to avoid incurring the costs necessary for them to do as the respondent has done? The costs might well be more than he has incurred but how much more, to achieve the same level of access, is not established.

[55] To my mind the southern road reserve is not the significant difficulty. There was no persuasive evidence that the problems there could not be overcome albeit at some cost to the applicants, but not necessarily disproportionate to the costs that the respondent has had to bear over decades.

[56] The greater concern is the access over the Crown Lot 7 where tenure is certain only for four more years and the length of road substantial. If the applicants had, through proper materials, established that there was no realistic prospect that access could be obtained across Crown Lot 7 – either because of the cost of providing comparable access or the attitude of the Crown – then their case would be very much stronger.  But to my mind those matters are merely speculative at this stage.  I do not mean to suggest by this comment that such evidence would necessarily justify access across the middle of the respondent’s land as the route that would meet their reasonable needs.

[57] The cases make very plain that the starting point in these applications is that the courts should not too readily interfere with property rights.[13]  The case advanced should be “clear and persuasive”[14] and the “evidence …should be examined with particular care to ensure that proprietary rights of a respondent are not unnecessarily diminished”.[15] Those proprietary rights here were the widest known to the law - Mr Pierce held his interest in the Pocket “subject to registered interests affecting the lot but free from all other interests”: s 184 of the Land Title Act 1994 (Qld).

[58] To impose the right of user sought will enable the applicants to avoid a difficulty inherent in the land that they purchased. The reality of the case here is that the applicants have seen this course as their cheaper option.  There is nothing wrong with that, per se, but the question is one of reasonable necessity and what is reasonable is, of course, a question of degree.  It cannot be entirely irrelevant that the applicants are Mr Pierce’s competitors in the commercial beef market, a market in which, the evidence suggests, margins are tight.[16]  They seek a cost advantage by using a track that his investment of time and money has created.  The reasonableness of that course has not been demonstrated to my satisfaction.

[59] While I appreciate the test is not one of absolute necessity,[17] and the availability of alternative access is not determinative,[18] I cannot accede to the view that because there is a prospect that the applicants might be put to significant cost, that might prove disproportionate to the value of the lands or to the impact on the respondent, and that such expenditure might be wasted if the Crown refuse to accommodate their access difficulties, then the onus on the applicants is discharged.

The Section 180(3) Factors

[60] The test to be applied is a composite one and so I am to consider the s 180(3) factors in conjunction with the first question that I have addressed above.[19]

[61] There are two relevant issues – can the respondent be adequately recompensed and has his refusal been unreasonable?  No submission was made that the use the applicants wish to make of their land was not “consistent with the public interest” as required by ss180(3)(a).

Can Mr Pierce be Adequately Recompensed?

[62] Section 180(3)(b) provides that I am not to make the order sought unless I am satisfied that “the owner of the servient tenement can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the easement”.

[63] There was no evidence from valuers about the proper measure of compensation.   A real estate agent gave evidence on behalf of the applicants to the effect that he appraised the value of the respondents’ land at $1100 per hectare.  The applicants’ solicitor calculated that the value of the land covered by his assumed path of the claimed easement, but for only a portion of it, would be $132. Those opinions have nothing, or very little, to do with the impact of the imposition of a statutory right of user on the respondent’s commercial grazing operations.  Mr Mellick made no pretence of attempting to assert otherwise. Rather he submitted that such issues could be sorted out later.

[64] The respondent led evidence from a valuer as to the method he would adopt in valuing that impact but no actual opinion was proffered, the valuer explaining that he had not had the time to adequately address the issues. I observe that the matter was listed on short notice over the strenuous objections of the respondent that he could not be ready in time.  The valuer did not assert that he could not arrive at an opinion of the appropriate compensation but that the methodology appropriate would not be that adopted by the agent – he would look at questions of diminution in value of the land acquired, severance and injurious affection if applicable, blot on title, and disturbance matters. Mr Mellick submitted that it remained to be seen whether the valuer’s approach was the correct one.[20]

[65] The absence of any valuation evidence complicates the task of responding to the requirement of the subsection but in any case I have concerns as to whether a view can be reasonably formed about the likely impact on the respondent of the imposition of the statutory right of user.

[66] The first concern is the imprecision in the evidence about the applicants’ proposed use. Mrs Naylor’s said that she could not accept conditions limiting the types of vehicles or extent of entry onto the land.  The potential demands of her business were too uncertain for that.  There was concern expressed about supplying fuel to ensure water supplies and accessing machinery to effect repairs.  External suppliers then are contemplated as using the track, a track which will have no defined physical boundaries.  It is apparently now agreed that it is not viable to fence the easement.  The inherent instability of the track almost certainly means that paths will be sought that do not follow strictly any existing path. In practise there will be no way of keeping visitors to any particular path.

[67] I note that the contract of sale and purchase of the property records that the applicants acquired, along with the land, 100 head of mixed cattle.  There is presently about 200 head of cattle on the land.  Mrs Naylor wants to increase the carrying capacity to 400 head of breeders by improving pastures and affecting works.  Given that the use to be made of the proposed access is said to depend on unpredictable variables such as water usage, fuel running out, disease, injury, property damage, as well as the need to cart cattle in and out, all of which one might think would vary with the size of the herd, I have difficulty understanding Mrs Naylor’s claim that the execution of those plans will not necessarily increase the use to be made of the respondent’s land. 

[68] In truth no-one knows what level of traffic might eventually be involved and what impact that traffic might have.

[69] Whilst the applicants’ expert, Mr Hindman, was dismissive of the impact on the respondent’s grazing operations of the imposition of the right of user claimed, the respondent was, rightly in my view, concerned at what the impact might be.  Mr Hindman has only limited knowledge of the land, makes assumptions that there will only be a low level of traffic, and does not explain what pastoral conditions he assumes prevail.  I am quite certain that in dry times every blade of grass becomes of significance.

[70] The second concern relates to the potential exposure Mr Pierce might have to claims by those who use the track.  The proposal is to extend use of the track to all those to whom the applicants give permission. It is evident that the applicants think that will include suppliers and servicemen and the like.  The track itself is just that – a bush track. It needs upgrading from time to time simply to maintain its utility.  There are beasts upon the track.  Quad bikes are apparently used as a matter of course.  There are plainly risks of injury. I have no evidence as to what public risk policies might cost, whether the cover reasonably available is adequate, and whether the applicants are willing or able to bear such cost.

[71] The third concern relates to Mrs Naylor and her attitudes and personality.  Any attempt at compensation must of necessity assume that the owners of the dominant tenement will behave in a reasonable and lawful manner, mindful of the servient tenements’ rights and interests. Those assumptions are not justified here.

[72] In the telephone call that I have previously referred to, that was taped by Mr Pierce, Mrs Naylor made very plain that she had no intention of behaving in a civilised way towards Mr Pierce. She threatened to harm the respondent, both in his person and property.

[73] The relevant parts of the conversation were as follows. In response to Mr Pierce saying, “What would you do if I came out your way and drove all around your country?” Mrs Naylor responded, in part: “…Right and I said to Kerrod [the first respondent’s son] from the beginning – mate we will be the best neighbours you’ve ever had if we can work together, if not we can be the biggest fuckin cunts you have ever fuckin met.  Now you can go either way here Morris – we can stay arch enemies forever and at the end of the fuckin day no cunt, not even you, will stand over me… You can go either way but I’m telling you straight down the line how it’s gonna fuckin work. Do you understand what I’m saying?”

[74] Mrs Naylor then turned to what she described as her “other option” which was to put a road in on an easement and said:  “Now, OK if we have to come to that option when we get to do that road which will still go through your block because it’s still an easement I will rip the fuckin cunt out of your fuckin land. Now you either want to play together – nice game of baseball, or you just want to fuckin rile me up and then – you know fuck.”

[75] Mr Pierce responded that he would not be permitting Mrs Naylor to go through his land any longer which prompted the following response:

“Look you dickhead, you fucking arsehole if you had been fucking amicable in the fuckin first place [the transcript records, accurately, that Mrs Naylor was now yelling] we would have had the fuckin road done.  Now I’m telling you now you fuckin piss me off you cunt.  I will go through that fuckin road when I want, where I want and next time you stand in front of me you fuckin cunt of a fuckin old thing I will put my bull bar straight through your fuckin arse. Do you hear me you fuckin arse wipe? Fuck off.”

Mrs Naylor then hung up.

[76] So, far from Mr Pierce threatening Mrs Naylor, as had been alleged, the converse was true. The claim in the diaries that Mrs Naylor recorded that she would take Mr Pierce to Court was equally false – her expressed intent was to use other and illegal means to obtain her ends.

[77] From Mr Pierce’s perspective he is not dealing with a neighbour mindful of his rights and interests. He is dealing with one contemptuous of those rights and interests and one moreover who has threatened to do him harm.  It might be said that since the police became involved Mrs Naylor has not carried out her threats.  But I am far from persuaded that I should assume these were merely empty threats and so of no consequence.  Her conduct before the complaint to the police was contemptuous of Mr Pierce’s rights and so has her conduct been in these proceedings. Mrs Naylor chose to put before the Court a version of their telephone conversation that was false and not only false but a version that attacked Mr Pierce’s character unfairly.  That was not something said or done in anger and without thought. The impression I have is that Mrs Naylor will do and say anything that she thinks that she can get away with – and she has the chance to get away with quite a lot if she is permitted unrestricted access to Mr Pierce’s land.

[78] I was not referred to any case in which a Court has been called on to consider the relevance of such conduct to the issues the legislation requires to be addressed. Mr Mellick did not seek to defend this conduct. But he did submit that it took the matter nowhere.  In every case of this type, he submitted, it can be assumed that the neighbours are at loggerheads and, very likely, at the point of intense dislike. That is true.  But he did not refer me to any case where threats of so blatant a kind had been made and criminal conduct indulged in.

[79] I venture to suggest that it would be very difficult to quantify in advance, in monetary terms, the impact of permitting such a neighbour onto one’s property.  While it is true that orders can be made that, if breached, may result in Mr Pierce having the right to come back to court and seek that Mrs Naylor be dealt with for contempt, that ignores two matters: the difficulties of proof and the inevitable and significant trouble and cost associated with litigation. 

[80] The respondent’s paddocks that the applicants wish to traverse contain valuable beasts, some worth many thousands of dollars.  The land itself is valuable and, even with care, can be damaged. There are improvements in the form of stockyards and fences that can be affected.  It is not difficult to envisage a situation where significant harm could be caused with no or little prospect of proving causation – to take one example, the driving of a vehicle so as to spook cattle and cause them to run through fences damaging and perhaps destroying those fences, harming themselves, and perhaps escaping.  Mr Pierce does not reside on the Pocket. He is in no position to guard his own interests at all hours of the day and night.

[81] It may be that the ingenuity of counsel can suggest a form of orders that would adequately protect Mr Pierce’s interests so that the valuers can offer valid opinions about the proper level of compensation, but no submissions have yet been made that gives me any confidence that can be achieved.

Was Mr Pierce’s Refusal Unreasonable?

[82] Mrs Naylor’s conduct is relevant too to the final matter – has Mr Pierce unreasonably refused the applicants’ proposition?  Subsection 180(3)(c)(i) requires that the Court consider “all the circumstances”.  Subjective factors are plainly relevant.[21]  Mr Pierce had every reason to be concerned about the impact of letting Mrs Naylor onto his land as I have discussed.  In the absence of safeguards protecting his legitimate interests it is difficult to see his opposition as unreasonable. 

[83] But even putting to one side Mrs Naylor’s personality and attitudes there was much that was unreasonable about the proposition made to Mr Pierce, accepting the applicants’ contentions that their land was land locked[22] and that there was no viable way around the Pocket.  Their proposition was contained in a letter from the applicants’ solicitors dated 11 June 2010. It was in the form of an easement in registrable form.

[84] The first striking thing about the proposal is its breadth. It reads: “The Grantor grants a right of way to the Grantee, and any person authorised by the Grantee, to pass and repass along the Servient Tenement at any time of day or night, on foot, with or without animals, with or without vehicles of any type including heavy machinery and agricultural machinery.”

[85] Effectively the grant was in the widest terms and permitted the applicants to use the track across the Pocket as they would any road. The proposed grant, by its terms, allows unlimited passage by vehicle and on foot. It arguably gives the applicants the right to move their stock along the easement. And persons would be entitled to access Mr Pierce’s land solely because they have the applicants’ permission – permission that is not necessarily restricted to those coming there only for the legitimate pursuit of the applicants’ cattle business.

[86] Mr Pierce expressed the opinion that the tracks on his land were such that he was restricted in the size of vehicles he considered appropriate to use on them – reference was made to an eight tonne truck with a 22 foot long stock crate.  The applicants are not to be so restricted. Why the applicants could not restrict the type of machinery they might want to bring onto the track, or why the applicants should be permitted to bring “vehicles of any type” onto the track, was never made clear to me. 

[87] I cannot accept that a grant of such width was reasonably necessary in all the circumstances. 

[88] Further, the easement proposed by the applicants contained the following terms:

“5.Subject to the following paragraph the Grantor shall not place or allow to remain a gate or other obstruction, whatsoever across any part of the Servient Tenement or across the ends of the Servient Tenement.

6.The Grantor may maintain signs on the Servient Tenement when moving livestock, machinery or other agricultural equipment used in the normal day to day operations of the Grantor’s property”.

[89] The pocket is fenced into three paddocks and has three gates across it.  That is so Mr Pierce can reasonably manage his operations. The notion that he should remove his gates, realign his fences, and  put up signs to alert the applicants of the use he wants to make of his own land, in order to facilitate the applicants’ travel across his land, would seem to me to be plainly unreasonable on its face. Under cross examination Mrs Naylor conceded that these conditions were unreasonable.  It was not until cross examination that there was any such concession. 

[90] Another odd feature of the easement proposed was that initially the applicants agreed to maintain only a section of the track across the Pocket – about a quarter of its length.[23]  No contribution was offered to assist in the maintenance of the greater part of its length until an affidavit was filed three months later.

[91] Further, the easement proposed that compensation be paid for this easement in the sum of $1,000.  Mrs Naylor described the sum, accurately, as “nominal”.  As I have said, no attempt was made to advance evidence as to what was reasonable.  In an affidavit filed 9 September 2010, Mrs Naylor indicated that she and her  brother “remain ready willing and able” to pay “reasonable compensation” but qualified that by asserting in relation to the $1,000 figure, that it had been offered “although I know that the actual value of the land is fare (sic) less than this”.  No further amount has ever been offered.  In truth the applicants had not, to that time, ever offered to pay reasonable compensation and the terms of her affidavit suggests that, to Mrs Naylor, the $1,000 figure offered already exceeded what was reasonable.

[92] Mr Mellick suggested, without any evidence, that the conditions were inserted from a precedent.  That may be so – but the proposal initially put was plainly unreasonable, and the refusal of it reasonable. Even assuming that the unreasonable conditions were removed, which might be implicit in the responses obtained under cross-examination, and a reasonable sum of compensation added, if that can be determined, it remains to my mind an unreasonably wide proposal.

[93] I should add that I have some difficulty with the notion that an applicant for such an order has no obligation to advance a case as to what might be reasonable compensation.  At the very least it increases the likelihood of refusal of terms where the respondent has no idea what might be the compensatory package.  More significantly, without such evidence I find it difficult to see how the Court can be satisfied that any refusal is unreasonable. Matthews J commented on the lack of evidence concerning reasonable compensation as being relevant in Tipler v Fraser.[24]

[94] Andrews J in Ex parte Edward Street Properties Pty Ltd,[25] too, thought evidence of compensation relevant:

“Again I think that a decision upon the question whether the respective respondents here can be so recompensed has to depend upon the offers made by the applicant.  …Evidence of the value of the proposed dominant land[26] and of the proposed servient land (or diminution in value) is surely relevant as part of an applicant’s case upon the question of compensation apart from other considerations.”

[95] And Wilson J plainly thought it relevant in Re Hodgskin where her Honour said:

Is Mr and Mrs Fusche's refusal to accept the imposition of such an obligation in all the circumstances unreasonable? This requires a consideration of the applicants' conduct in purchasing the land without the benefit of the easement, the existence of an easement in favour of Bundaberg Sugar Ltd, the parties' respective conduct throughout the dispute, and the adequacy of the compensation offered.”[27]

[96] An order imposing a statutory user by way of a grant of easement was made by Chesterman J (as his Honour then was) in Tran & Anor v Cowan & Ors[28] without valuation evidence but the facts there were quite different – the owners of the servient tenement had purchased the land assuming there to be an easement in place but through oversight it had not been registered. Until the morning of trial the parties had both proceeded on the basis that there could be no diminution in value.

[97] It is one thing to place before the court competing opinions as to the compensation that an expert maintains meets the case, to make an offer in accordance with such an opinion and to argue the merits of any conflicting opinions, at all times indicating a willingness and ability to pay such compensation as may be adjudged reasonable, but quite another to have no evidence at all and to make no offer at all that is in accord with an apparently reasonable and honestly held expert view.

[98] The applicants’ attitude seems to be that the unreasonableness of their proposal was not relevant – it was then a matter of the respondent being unreasonable in failing to negotiate with them. It is true that Mr Pierce was in no mood to negotiate but that is not what the legislation requires – the onus is on the applicants to put forward a proposition that it would be unreasonable for the respondent to refuse, not for him to come up with a proposition that he finds acceptable.

[99] I cannot see that the respondents’ refusal to accept the imposition of the statutory right of user was, in all the circumstances, unreasonable.

Conclusion

[100] In summary, the applicants purchased land knowing of the access difficulties. They have proceeded to increase the herd on the land without regard to the fact that they had those access difficulties and now complain that their operations are disadvantaged.  They have ignored the respondent’s rights and committed criminal offences against him, arrogating to themselves the right to cross his land when they pleased..  The respondent had good reason to be sceptical of undertakings to use his land sensibly and to indemnify him for any loss. No effort was made to offer terms that might assuage the respondent’s reasonable concerns arising from their past conduct towards him and the risk of harm that had been threatened.  The applicants put forward an offer that they must have realised was unreasonable in its terms.  They made no offer of reasonable compensation but for months maintained the position that all the respondent was entitled to was a nominal sum.  The respondent still remains ignorant of what compensation might be offered. And the right of way sought seems wider than can be reasonably justified.

[101] Consideration of the s 180(3) issues does not improve the applicants’ position.

[102] The application is dismissed.  The applicants should pay the respondent’s costs.

 

Footnotes

[1] Lot 1777 on CPLIV0566606928 County of Livingstone Parish of Cecil being the whole of the land in Title reference 30615160.

[2] Lot 2 on registered Plan No 606928 County of Livingstone Parish of Cecil being the whole of the land in Title reference 30251130.

[3] Lot 1 on registered plan 606928 County of Livingstone Parish of Cecil being the whole of the land in Title reference 30362242 - an area wholly contained within the Pocket.

[4] [2005] QSC 112; [2006] 1 Qd R 42 at [23] – authorities cited omitted.

[5] Lots 6 and 7 on CPLN 2003 606928 County of Livingstone Parish of Cecil being the whole of the land in Title reference 40043519.

 

[6] T2-53/53.

[7] The best evidence of the history of the matter seems to be that set out in the letter of Messrs South & Geldard of 15 April 2009 to the Rockhampton Regional Council (Ex JPN 6 at p26 of the exhibits to Mrs Naylor’s affidavit filed 12 July 2010).

[8] T1-26/55.

[9] The transcript records Mrs Naylor saying “implied” at this point when asked to read the entry (T2-16/12) but the diary note reads “replied” (see p 48 of Exhibits to Mrs Naylor’s affidavit filed 12 July 2010).

[10] See Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 at [14] per P McMurdo J.

[11] Ex Parte Edward Street Properties Pty Ltd [1977] Qd R 86 at 90 per Andrews J; Hanny v Lewis [1998] NSWSC 285 per Young J.

[12] T1-41/20.

[13] Most significantly in the context of grazing properties: Lynch v White (1987) Q Conv R 54-257, 57,770 per de Jersey J, Connolly and Carter JJ concurring.

[14] Ex Parte Edward Street Properties Pty Ltd (1977) Qd R 86 at 91 per Andrews J (as he then was).

[15] Lynch v White (1987) Q Conv R 54-257, 57,770 per de Jersey J (as he then was).

[16] Carter J considered the circumstance that the owner of the proposed dominant tenement was a competitor to the owner of the servient tenement to be relevant in Re Worthston Pty Ltd [1987] 1 Qd R 400 in the context of reasonableness of refusal.

[17]Re Seaforth Land Sales Pty Ltd’s Land (No 2) [1997] Qd R 317 at 322 per Hanger CJ; Re Kindervater [1996] ANZ Conv R 331 at 333 per Derrington J.

[18] Tipler v Fraser [1976] Qd R 272; Re Seaforth Land Sales Pty Ltd’s Land (No 2)(supra) at 331 per DM Campbell J; Re Hodgskin [1999] QSC 225 per Wilson J.

[19] Re Worthston Pty Ltd [1987] 1 Qd R 400 at 403 per Carter J citing Thomas J in Nelson v Calahorra Properties Pty Ltd (unreported - 5 December 1984).

[20] I note that Demack J in Lynch v White (1986) Q Conv R 54-224, a case concerning grazing land, allowed compensation including injurious affection, severance and disturbance (his decision was overturned on appeal on a different point). See also Wengarin Pty Limited v Byron SC (1999) 9 BPR 16,985, 16989 per Young J (as he then was); Khattar & Anor v Wiese [2005] NSWSC 1014 at [64]-[72] per Brereton J.

[21] Grittner & Anor v Hadley [2008] QSC 268 at [93] per Cullinane J.

[22] I note the comment of Andrews J (as he then was) in Ex Parte Edward Street Properties Pty Ltd [1977] Qd R 86 at 90 that there was no burden upon owners of servient land to advance the public interest by submitting to easements where land is land locked.

[23] In fact the terms of the easement are not that clear but I was informed that the blanks in the easement proposal was understood by the parties to refer to commencing from about the yards/homestead on Lot 1.

[24] [1976] Qd R 272 at 274.

[25] [1977] Qd R 86 at 90.

[26] Whether the impact on the dominant land is relevant is debateable: see Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 at [21] per P McMurdo J; cf Re Towerpoint Pty Ltd [1991] Q Conv R 54-389 per Thomas J.

[27] [1999] QSC 225 at [23].

[28] [2006] QSC 136 at [46].

Close

Editorial Notes

  • Published Case Name:

    Naylor & Anor v Pierce & Anor

  • Shortened Case Name:

    Naylor v Pierce

  • MNC:

    [2010] QSC 399

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    22 Oct 2010

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status