Kettleton v Murray[2017] QDC 64

DISTRICT COURT OF QUEENSLAND

1. [1]
   When the respondents, Mr and Mrs Murray, purchased their property at 294 Repeater Station Road in May 2016, they were aware that a right of way easement burdened their property in favour of other residents of Repeater Station Road including the applicant Mr Kettleton. They were also aware that there was a gate across the easement, roughly where their land begins and the public road, Repeater Station Road, ends. They were not aware that the previous owner, Mr Roberson had had some dispute in 2014 with Mr Kettleton and his partner, Ms Baker, about the gate which according to Mr Roberson was resolved when his solicitor sent Mr Kettleton a letter.

2. [2]
   Soon after the Murrays moved into their property in August 2016, they became aware of Mr Kettletons’ concerns about the gate. On their unchallenged evidence, Ms Baker has, at times, been quite aggressive towards them in relation to the gate and cattle grazing in the vicinity of the access gate. The parties then negotiated to resolve the dispute, and the Murrays (who are self-represented) annexed to their trial affidavits a number of proposals advanced by Mr Kettleton to them and by them to him, in an attempt to resolve the dispute.

3. [3]
   At the start of the trial Mr Kettleton, through his counsel, objected to this material on the basis that it was “without prejudice”. There is no suggestion on the face of many of these documents e.g. RK2 and RK3^[1]that the negotiations were without prejudice, and Mr Kettleton did not suggest otherwise. There are some of the legal letters, after these proceedings were commenced (e.g. RK9) that are clearly so marked and I have not considered those documents.

4. [4]
   Quite quickly, the relationship between the parties deteriorated. It is tolerably clear that Mr Kettleton was responsible for making a complaint to the Council to the effect that the Murrays were using their property as a truck business.^[2]He acknowledges that he was mistaken. There is evidence of angry exchanges between Ms Baker and Mrs Murray, none of which matters now.

5. [5]
   On 13 December 2016, Mr Kettleton commenced proceedings by way of Originating Application in the Gympie District Court seeking the following orders:

1. A mandatory injunction requiring the Respondents to:

1. (a)
   remove a gate obstructing the Applicant’s free right of way in, through, along and over Lot 3 on a RP 149500, Title Reference 16105134 (“the Respondent’s land”);

2. (b)
   prevent cattle and horses obstructing the Applicant’s free right of way in, through, along and over the Respondent’s land.

2. An injunction restraining the Respondents from depositing vehicle wrecks on the Respondent’s land in the immediate vicinity of the Applicant’s land, being Lot 1 on RP 187945, Title Reference 17146167 (“the Applicant’s land”) obstructing the applicant’s free right of way in, through, along and over the Respondent’s land.

3. Further, or alternatively, declarations that the Applicant has the right ancillary to his rights under Registered Easement No. 602200243 (J386430H) to:

1. (a)
   enter the Respondent’s land and replace the said gate with a stock grid; and/or

2. (b)
   enter the Respondent’s (sic) and construct a fence to stop cattle and horses straying onto the roadway running along the Respondent’s land used by the Applicant to access the Applicant’s land.

4. Any further or such other orders as the court deems just or appropriate including directions as to the hearing of these proceedings.

5. An order that the respondents pay the applicants costs of an (sic) incidental to the proceedings.

6. [6]
   The application was returnable before the Maroochydore District Court on 20 January 2017, when I made directions orders leading up to a short trial on 2 March 2017 in the Gympie District Court.

7. [7]
   The Murrays property is Lot 3, RP 149500, Title Reference 16105134. As can be seen from the title search annexed to Mr Kettleton’s first trial affidavit,^[3]their property is burdened by 7 easements including Registered Easement No. 60220243 (J386430H) which benefits Mr Kettleton’s land (the Easement).

8. [8]
   The Easement ends roughly at the entrance and driveway to Mr Kettleton’s property a few hundred metres from the gate. The Easement is sealed.

9. [9]
   The access road continues to a point depicted approximately on p 8 of Exhibit 2. As Mr Kettleton explains in his second trial affidavit,^[4]the access road over the easement provides access to 7 properties including the Murrays. The Kettleton property comprises 40 acres of land improved by a house and three sheds used as dog kennels and a workshop. The balance of the land is unimproved bushland. The Murrays land comprises approximately 28 acres of land and is improved by their dwelling house.

10. [10]
    On p 8 of Exhibit 2, Mr Kettleton has marked the location of the residences of other land owners who have the benefit of easements over the Murray’s land. None of these residents have joined in these proceedings.

11. [11]
    Mr and Mrs Falk live at 266 Repeater Station Road, and their property comprises 75 acres. There is a 1 acre block which is unoccupied, and the Bureau of Meterology occupies a small block which it uses as a weather station, and the Baptist Open Door Respite Centre is also conducted on a small block; and the Hunters occupy a 6.5 acre block.

12. [12]
    The area is quite elevated rural land and quite isolated. The only road access to all these properties is by the access road which commences over the Easement. The Easement is annexed to Mr Kettleton’s first affidavit.^[5]  It was registered on 22 February 1988. It contains no covenants and is expressed in these terms:

“The Grantor will permit the Grantee free right of way in, through, along and over the Servient Tenement.”

13. [13]
    The Easement document annexed to Mr Murray’s trial affidavit^[6]is in fact not the Easement the subject of these proceedings. Rather it is a copy of the Easement No. 602200242 (G54108) registered on 24 April 1980. Nothing turns on this, but as can be seen from that Easement, it is expressed in much more expansive terms and includes a number of covenants absent from the Easement.

The law

14. [14]
    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.^[7]

15. [15]
    In Trewin v Felton [2007] 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.”

16. [16]
    That passage was quoted with approval by Boddice J in Brown v Jackson at [16]. 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.

The evidence

17. [17]
    This is a case which does not fall to be decided in any significant way on issues of credit and reliability.

18. [18]
    It is common ground that the present gate was put in place prior to Mr Roberson purchasing the Murray’s property in around 1990. The gate was in place when Mr Kettleton purchased his property in 2008.

19. [19]
    Mr Kettleton and Ms Baker have conducted a breeding and dog selling business from the property since taking possession. As a result of some questions from me, it appears not to be a profitable business. In fact it appears to be conducted at a loss. In his first trial affidavit,^[8]Mr Kettleton states that clients come to visit two or three times a week to collect and/or view puppies that they have purchased. Mr Ferraro accepted that any reference in either of Mr Kettleton’s or Ms Baker’s affidavit to alleged confusion or difficulties to clients because of the gate is hearsay.^[9]  Neither suggest that they have ever seen any clients having such difficulties, and no evidence has been led to this effect from any clients of the business. Mr Kettleton told me that they have 24 breeding dogs (King Charles Cavalier Spaniels) both male and female, and have three to four litters a year, producing 20 puppies “tops”. Ms Baker thought the average was 40 a year.

20. [20]
    The gate is described as “lockable” in Mr Kettleton’s first affidavit, however it is clear that the gate is never locked and is secured by some sort of pin device. This can be seen in the video taken by Ms Baker which was played in court, and which is annexed to her affidavit filed 23 February 2017. This was a video of a journey she undertook along the easement and out through the gate on 17 February 2017. It can be accepted that she enters and leaves the property two or three times a week. Mr Kettleton uses the access gate less than his partner.

21. [21]
    Their complaint is that the gate substantially interferes with their right of way as:

a)  It is difficult to open 

b)  It takes time to open and close

c)  It is an unreasonable impediment in emergency situations when they have to take a sick dog to the vet in Gympie.

22. [22]
    In response, I accept that since the Murrays have owned the servient tenement, they have taken all reasonable steps to maintain the gate in good working order and at no time has it been locked. In her oral evidence, Ms Baker in answer to a question from me, said that the gate is in good condition at the moment, and the way it lines up is “fabulous”.^[10]  I am satisfied that they have never locked the gate or otherwise rendered it impassable. The video taken by Ms Baker on 17 February 2017 does not suggest to me that the gate is difficult to open or shut. It appears to be a very simply mechanism which can be opened and shut quite easily. As to the emergency issue, Mr Kettleton’s evidence is that the trip to Gympie in good conditions down the mountain is about 35 minutes, so a short stop to open and then close the gate is not going to add significantly to that time.

23. [23]
    Mr Kettleton also complains that his right of way is substantially impeded by the Murrays’ cattle who stray on and around the access road and the gate.

24. [24]
    The Murrays have a small herd of approximately 10 cows and 5 calves which came onto their property on agistment in late September 2014. Mr Roberson ran cattle on the property the whole time he owned it except for the last few months when he de-stocked.

25. [25]
    It is not really an issue that from time to time the cattle graze around the access gate and along the sides of the access road and also near Mr Kettleton’s access gate off the easement. As he notes in his affidavit, the Easement is a “few hundred metres” to his driveway. Mr Kettleton was not challenged in relation to para 20 and 21 of his first trial affidavit. Not surprisingly, the Murrays as lay people were not familiar with cross-examination and its forensic purpose.

26. [26]
    Ms Baker says that the cattle are on the access road or at the side of road on approximately one-half of the two or three times a week that she enters and leaves her property.

27. [27]
    There were no cattle on the easement or near either gate when she took the video on 17 February 2017. The easement is partially fenced along the access road, and the cost of fencing the remaining portion of approximately 550 metres is $6,000.

28. [28]
    The Murrays want to retain the gate to ensure that the cattle do not stray onto the public road and cause a hazard. They do not want to cut off access to the land around the easement by fencing the remaining 550 metres, as it would quickly become overgrown and a fire hazard. I accept that because of the nature of the terrain along the easement, particularly along the border with Mr Kettleton’s land, it would be difficult to slash. This evidence^[11]was not challenged. Mr Murray gave evidence that he uses the access road more frequently than either Mr Kettleton or Ms Baker. He agrees that on occasions cattle are on or near the road but move if approached slowly. He frankly acknowledged that on occasions he has moved them away from the access gate across the easement to ensure that they do not move out into the public road reserve.

29. [29]
    The Murrays also gave evidence that if the gate is open, the occasional member of the public enters and proceeds along the easement to a dead end, not appreciating that it is private property. The closed gate, with the “private property” signs acts as a deterrent to visitors who are not using the road to visit any of the 7 properties it serves. The area is quite scenic and rural and isolated and elevated, and Mrs Murray has noticed evidence of people having camped on the private land.

30. [30]
    The parties disagree about the utility of a cattle grid in place of a closed gate, but the dispute is not particularly germane to the central issue, which is, has Mr Kettleton satisfied me on the balance of probabilities that the gate in its present state is a “real, substantial interference with (his) enjoyment of the right of way”. Mrs Murray’s evidence about the cattle was that they very rarely graze along the side of the access road, and that they sleep most nights in the paddock beside their house. She pointed out reasonably that it is a small herd, and they have 28 acres of land.

31. [31]
    Taking the evidence at its highest, it suggests that the cattle are only occasionally grazing around the gates and/or on the edge of the access road. Mrs Baker’s evidence suggests that since 24 September 2016, when the cattle were agisted on the Murrays’ property, the cattle had been present on or around the easement about 20 times. There is no suggestion that vehicles have ever been damaged, and I accept the Murrays’ evidence that the cattle are quiet and will move if approached slowly in a car.

32. [32]
    I am not persuaded that the cattle substantially interfere with the Mr Kettleton’s enjoyment of his right of way.

33. [33]
    The final area of complaint (see Order 2) is the vehicle wrecks being deposited near Mr Kettleton’s access gate to his property off the easement. It seems to be common ground that the adult son of Mr and Mrs Murray deposited three vehicle wrecks in the positions depicted in the photographs exhibited to Mr Kettleton’s first affidavit between early October and November 2016. By then the parties were in dispute about access. After an exchange of emails, including a letter from Mr Kettleton’s solicitor, the cars were removed, and Mr Murray was happy to undertake to the court to ensure that in future no vehicles would be placed on his land which would impede Mr Kettleton’s enjoyment of the right of way.

34. [34]
    It follows that the applicant has failed to satisfy me that the access gate and/or the cattle, on the evidence before me, constitutes a real substantial interference with his enjoyment of his free right of way over the easement. His application should be dismissed for that reason.

Delay

35. [35]
    The Murrays, despite being lay people, refer reasonably to the delay by Mr Kettleton in seeking equitable relief by way of mandatory injunctions and/or declarations. It is common ground that the gate has been on the easement for decades. It was there when Mr Kettleton purchased his property in 2008. Mr Roberson was not challenged about his evidence to the effect that for the first six to seven years that Mr Kettleton owned his property, he and Ms Baker complied with closing the gate and raised no issues about it. Nor was there any evidence in that period that they raised issues about the cattle. He denied ever intimidating his neighbours in relation to the gate. In his trial affidavit^[12]he refers to issues being raised by both (about the gate and cattle). He was not challenged about his evidence that he “received serious threats to forcibly remove the gate entrance in January 2014 by them without my permission”. He was not challenged about his evidence that after his solicitor sent a letter they “complied with the closing and opening of the entrance gate”. He was also not challenged about his evidence that Mr Kettleton and Ms Baker had “an advertising sign belonging to them of their business, Cavalrite, which clearly stated on their sign ‘Please Close the Gate’, that continued to stay on the gate upon sale of (his) property”. This accords with Mr Murrays’ evidence^[13]which also was not challenged. The Murrays’ evidence is that they satisfied themselves that there were no prior neighbourhood disputes before entering into a binding contract, and Mr Kettleton by his conduct seems to have acquiesced in having the gate across the easement for many years before the dispute with Mr Roberson arose in 2014, and thereafter until the Murrays owned the land. The same conclusion follows in relation to the cattle. Mr Roberson had cattle grazing on his land for the whole 26 years he owned it apart from a few months, and in cross-examination he estimated his herd on his land was 25-30 head.^[14]It is inconceivable that at some time his cattle would not have grazed around both the gate across the easement and along the side of the side of the access road, including near Mr Kettleton’s access gate.

36. [36]
    It is a defence if a defendant to a claim for equitable relief can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant’s conduct or (b) cause the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.^[15] 

37. [37]
    The evidence here satisfies me that even if I had found that Mr Kettleton was entitled to equitable relief, the Murrays have satisfied me that the relief would be denied because “at the very least” by his delay, Mr Kettleton has acquiesced in the unlocked gate being across the right of way easement and in cattle grazing occasionally on the edge of the easement near the access gate; and that in the circumstances it would unjust to the Murrays to disturb the present situation by granting the relief sought.

Final orders

38. [38]
    The application is dismissed. No issue as to costs arises because the Murrays represented themselves.