DISTRICT COURT OF QUEENSLAND

1. [1]
   The parties are landholders and neighbours, the applicant being the owner of 353 Bootooloo Road and the respondents being the owners of 351 Bootooloo Road, in Bowen. The dispute the subject of the application is about the use of an easement.

The land

2. [2]
   The respondents’ land description is Lot 8 on RP 858295, County of Herbert, Parishes of Dargin and Pring, Title Reference 21560011. The land is burdened by Easement W, being a right of way easement in favour of the applicant’s land, granted on 21 December 1992. 

3. [3]
   G.L.N. & Sons Pty Ltd is the registered proprietor as trustee of Lot 20 on RP 847502, County of Herbert, Parish of Dargin, Title Reference 21527103. The land is burdened by Easement F, being a right of way easement in favour of both the applicant’s land (Lot 19 on RP 804252, County of Herbert, Parish of Dargin) and Lot 8 (the respondent’s land).

The application

4. [4]
   The applicant, Kevin John Norman, applied for several orders: a declaration that he is entitled to exercise a right of way over Easement W; an injunction restraining the respondents from obstructing access to or denying him entry onto Easement W; and other ancillary orders.

The relationship between the parties

5. [5]
   The relationship between the parties has deteriorated over a period of time, primarily because of a dispute about the use of and access through the easement, which amongst other things provides a connection between Bootooloo Road and the applicant’s property on Lot 19. 

6. [6]
   There are other disputes between the parties, primarily relating to Easement F on Lot 20 and damage to a grid crossing bridge over a waterway between two dams, the damage said to have been caused by the respondents’ use of that easement.

7. [7]
   Whilst Easement F and Easement W form part of the contiguous access way from Bootooloo Road to both Lots 19 and 8, traversing the northern boundary of Lot 20, Easement F is that part of the contiguous access immediately connecting to Bootooloo Road.

8. [8]
   However, the damage to the bridge and other issues about easements on these properties is not the subject of this application – rather, this application deals with Easement W part of which is immediately adjacent to the entrance to Lot 19. I do not need to go into the detail of the deterioration in the relationship between the parties: suffice to say, it has reached a point where there are accusations by one party and counter accusations by the other and they seem not to be able to find much in the way of common ground.

9. [9]
   The respondents in their affidavit material in response to those allegations have given explanations as to why activity of that nature had occurred, in the context of necessary work being done and the blocking of the easement being temporary only and for a legitimate work purpose. Needless to say, the applicant does not accept that explanation or the assertion that the easement has been and is otherwise clear of obstruction and able to be used as intended as a right of way.

10. [10]
    The affidavit material exhibits, amongst other things, photographs taken at various points in time of electric fences and vehicles on the easement. Of course, these photographs depict what exists at the point in time when the photograph is taken and the respondents say that photographs showing obstruction to the easement are in effect not relevant because the easement is otherwise unobstructed save for the work at that point in time being undertaken on the easement or adjacent to it.

The applicant’s submissions

11. [11]
    The applicant alleges that his access along and use of Easement W has been impeded by the conduct of the respondents: for example, in parking a large crane or other vehicles on the easement thus denying or significantly restricting access; or by erecting electric fences along and across the easement.

12. [12]
    In summary, Mr Collins submitted that the respondents had unilaterally denied the applicant access to Easement W, deliberately limited his access to the easement, by constructing fences, refused to allow him proper access to Easement W and that there had been a history of dispute between the parties.

13. [13]
    Mr Collins challenged the utility of undertakings in lieu of an injunction, given the intractable positions of the parties and their deteriorated relationship. He submitted that an injunction that had the force of law was necessary. He submitted that the orders sought by the applicant ought to be granted.

14. [14]
    He submitted that damages were an inadequate remedy because the situation was persisting, the respondents had unilaterally withdrawn access and despite being put on notice, continued that behaviour and that the dispute was otherwise incapable of resolution.

The respondents’ submissions

15. [15]
    Ms Hillhouse submitted that the easement exists as a matter of law and that a declaration giving the applicant right of way is nugatory in that circumstance. With respect to the application for an injunction she submitted that the court did not have power to grant an injunction in the circumstances of this case because of the limited scope of s 68(1)(b)(xii) of the District Court of Queensland Act 1967.  She contended that an undertaking was sufficient in lieu of an injunction.  With respect to impediment over the easement, she submitted that the easement was unobstructed and remained so.

Discussion

(a) Easement W

16. [16]
    There is no dispute about the existence of Easement W, nor about its use and benefit. It is a right of way easement on the land of the respondents for the benefit of the applicant. The respondent as grantor of the easement must permit its use as a right of way and the applicant as grantee of the easement is entitled only to that which the grant of easement permits, that is, a right of way: See Fanigun Pty Ltd v Woolworths Ltd & Anor; Woolworths Ltd v Fanigun Pty Ltd & Anor [2006] QSC 28.

(b) Declaration.

17. [17]
    The court’s jurisdiction to grant a declaration is broad. However, there must be a real question in issue and real person who has a present and actual interest to oppose the declaration sought. In other words there must be a proper contradictor: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421.

18. [18]
    As I have observed, there is no issue about the existence of the easement or, by implication, the terms of the easement. It as an easement granted by the respondents (or their predecessors in title) to the applicant (or his predecessors in title) of a right of way on Easement W. That being the case, there is really no issue to be tried. See Simonidis & Ors v Bremer & Ors [2012] QSC 69.   

19. [19]
    In the circumstances, there being no dispute about the existence or terms of the easement there is no utility in the court making a declaration.             

(c) Injunction

20. [20]
    This court has jurisdiction to grant an injunction pursuant to s 68 (1) (b) of the District Court of Queensland Act 1967. The section provides that the District Court has jurisdiction to hear and determine the following actions and matters – in particular and relevantly:

“(xii) to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of that land does not exceed the monetary limit, or, in lieu of or in addition to such injunction, damage is not exceeding the monetary limit” (my underlining).

21. [21]
    The sub-section has two requirements, one or other or both of which being necessary to found jurisdiction.

22. [22]
    Firstly, there is actual, threatened or apprehended trespass. In this case it is may be arguable that the erection of a post by the respondents on the land of the applicant might amount to a trespass. However, the applicant’s evidence about that does not stand uncontradicted. He and the respondents are at odds about many of the historical relationship incidents between them, including that occurrence. I do not think that it is open to me to make an injunction based on trespass.

23. [23]
    Secondly, there is actual, threatened or apprehended nuisance to land. Nuisance equates to an injury to a person in possession of land by which that person’s enjoyment of that property is adversely affected. In this case the applicant contends that his access to and use of the easement has been impeded by the conduct of the respondents. Hence in that context it is arguable that there has been a nuisance of the type referred to in the section. It follows that prima facie that there is jurisdiction to make an injunction.

(d) Other Orders

24. [24]
    Orders 3 and 4 in the Originating Application, sought by the applicant, deal with matters that are now historical. There seems to be no evidence that there is currently any impediment or obstacle to the access to and use of the easement by the applicant and in those circumstances those orders are not of any current relevance.

(e) Undertaking

25. [25]
    The respondents proposed the making of an undertaking, to ensure the applicant’s rights under the easement. It was submitted on behalf of the respondents that this was a more appropriate and preferable course to a grant of an injunction. Mr Collins opposes that proposal and maintained in submissions that an injunction, which he said carried with it the force of law, was an order which the applicant continued to seek.

26. [26]
    An undertaking requires the express authority of the grantor and must be in clearly expressed terms because of the serious consequences of any breach of them. See the discussion in Lade & Co Pty Ltd v Black [2005] QSC 325.

27. [27]
    The making of an undertaking to the court amounts to an enforceable obligation upon the respondents to abide by the promise inherent in the undertaking. Failure to abide the undertaking will mean that this matter would come back to the court and almost certainly, if I was to adopt the proposal, an injunction would ensue.

28. [28]
    The undertaking which the respondents are prepared to make is, in simple terms, said to be that they would undertake not to block or obstruct the easement area. If the proposal was to be given effect it would have be expressed in more precise and less equivocal terms than that.

29. [29]
    In order to be enforceable, the undertaking should be made personally and jointly by the respondents; expressed in clear and unambiguous terms; and be capable of being performed at the time it is made

30. [30]
    If it be the case that the applicant’s access to and use of the easement in accordance with the terms of its grant has not been impeded, interfered with obstructed or otherwise adversely affected since the date of hearing in October 2013, then it seems to me that an undertaking by the respondents would a sufficient remedy to ensure the continuance of the rights of the applicant pursuant to the terms of the easement.

Conclusion

31. [31]
    I am satisfied that the applicant’s rights from and interest in Easement W are able to be protected by such a written undertaking made by the respondents so as to ensure the status and continuation of the applicant’s rights from and interest in the Easement W on the respondents’ land. I am not satisfied that Orders, 1, 3 and 4, sought in the originating application, should in the circumstances be made, save for the injunction in Order 2 in the event that the respondents refuse, neglect or fail to make the undertaking.

32. [32]
    The parties should try to agree on the terms of the undertaking. The undertaking should be made within 28 days. In the event that there is no agreement as to terms, I will give the parties liberty to apply on five days’ notice. The court will grant an injunction to achieve what the undertaking would otherwise have provided.

Costs

33. [33]
    The applicant has sought payment to him of the reserved costs of the first and third adjournments of the Originating Application and the costs of the hearing on 21 October 2013. The respondents have submitted that the applicant should pay the respondents’ costs of the proceedings, save for the costs reserved from the first and third adjournments and that they pay those reserved costs to the applicant. I have previously ordered the respondents to pay the applicant’s costs of the second adjournment.

34. [34]
    The general rule is that costs follow the event. In this case the applicant in my view has been successful. I have jurisdiction to grant an injunction, sought in Order 2 of the Originating Application, and I would have done so but for the offer of an undertaking. After careful consideration I have accepted the undertaking as being a sufficient and more practical means of ensuring that the applicant’s rights and interests in Easement W will be adequately protected. It is in that context that the applicant has been successful on this hearing.

35. [35]
    In so far as the first and third adjournments are concerned, the reserved costs should follow the outcome of the application. Therefore the appropriate order is that the respondents pay the applicant’s costs of and incidental to the proceeding. That order encompasses the costs thrown away on the first and third adjournments and the costs of the hearing on 21 October 2013.

Orders

  1. Application granted.

2. The respondents are personally and jointly to give to the applicant a written undertaking, expressed in clear and unambiguous terms, that preserves the applicant’s rights and interest in Easement W.

3. The respondents to pay to the applicant his costs of and incidental to the proceeding, including reserve costs, as agreed or as assessed, on the standard basis.

4. The parties have liberty to apply on five days notice.