Ross v Dale[2022] QLC 13

LAND COURT OF QUEENSLAND

1. [1]
   In 2021, Richard Ross purchased Lot 107 on Plan CI234, a block of cane land off the Mackay Eungella Road. The previous owner of Lot 107, Peter Walker, had an agreement to pass over land owned by Brad Dale so as to deliver cane to the Teemburra 01 siding. That agreement did not pass to Mr Ross on the sale of the property. Mr Ross wants the Court to grant the access right that Mr Walker had by his agreement with Mr Dale.

2. [2]
   The relevant legislation is the Sugar Industry Act 1999, and section 65(5) of that Act sets out the matters I must consider. There are two: 66(5)(a) – whether the applicant has failed after reasonable attempts to negotiate an agreement with the landholder for the access right; and 65(5)(b) – whether the access right is necessary for a purpose mentioned in section 63(2) or (5) in relation to the applicant.  The relevant purpose is 63(2)(a) – to facilitate supply of cane to the mill. I note that Mr Ross bears the onus of proof in both of those matters. 

3. [3]
   As to the first – whether Mr Ross has made reasonable attempts to negotiate – I note that he made no contact with Mr Dale prior to the settlement of the purchase of the land and there has been no direct contact. Indeed, the only attempt to negotiate was that Mr Ross asked Mackay Sugar to intervene. The result of that intervention is recorded in the Mackay Sugar memo dated 26 July 2022 and it is safe to say that it was not successful. Ordinarily, that level of engagement would not satisfy me that reasonable attempts had been made to negotiate an agreement. But I received evidence from Mr Ross and Dale in which they indicated that they cannot get along and that they don’t talk to each other.

4. [4]
   I have correspondence from both sides’ legal representatives that these gentlemen are not to enter each other’s property. Mr Dale’s representative submitted to me that any right of access is like an unlit match to a fire if anything went wrong during the access period. Therefore, in these unusual circumstances, I am satisfied that Mr Ross had ‘just’ made a reasonable attempt to negotiate an agreement. The requirement for reasonableness does not transfer over to section 65(5)(b). The wording of that section is that ‘access right is necessary’, and I have paraphrased that in listening to the evidence to mean ‘is this the only way to get cane to the point of delivery?’.

5. [5]
   Mr Ross has submitted extensive evidence and I will deal with each of his points separately. First of all, he said that the proposed route was the safest onto the Mackay Eungella Road. That comment acknowledges that it is not the only access and the Court heard that there was access via Nick’s place, the access near the vegie stall, and the top access which is the proposed alternative access that Mr Ross has submitted to Mackay Sugar. I also heard evidence that access from Lot 107 was also available to the point of delivery at Pinnacle 1 and 2 without going onto the Mackay Eungella Road at all. I also heard evidence that these alternative access points had been used in the past.

6. [6]
   I was given a copy of a risk assessment tool. That is a template only and I have no actual evidence of its application, nor do I have evidence from a traffic engineer as to the safety of the top access point. My own observation is that the top access point has good visibility of the Mackay Eungella Road in both directions. I acknowledge the difficulty of the railway cutting at that point, but I also observed that cane trains are usually slow and noisy and the probability of a collision between Mr Ross and a cane train at that cutting is low. Mr Ross has also referred to the extra cost of transporting cane via the alternative routes. That is not a factor in my decision of whether or not access is necessary. He also referred to convenience. Again, that is not a factor.

7. [7]
   Mr Ross referred to questions about the legality of the other access points to the Mackay Eungella Road and to Lucas Paddock Road. There was no actual evidence about the legality of these points, although, I note two things. Firstly, that Nick’s access allows access to Nick’s house which is essential and is the only access point. One would have thought that it is a legal access. Secondly, Mr Walker’s application to open the road reserve onto Lucas Paddock Road was granted and there is no point in granting a road access unless it connects to another road. So, it would seem to me that the access onto Lucas Paddock Road is probably, if not almost certainly, a legal access. In any event, it is Mr Ross who has the onus of proof as I have noted, and I am not satisfied that he has discharged that onus of proof in demonstrating that those access points are not viable.

8. [8]
   Mr Ross referred in his material to the cane supply agreement and, late in the proceedings, I was provided with a draft. I note that there is no signed cane supply agreement. I note in the draft agreement that the point of delivery is by agreement and that can be varied, and that it doesn’t require input from any other grower. Mr Ross’ comments, therefore, about the requirement of the cane supply agreement dictating the point of delivery might be correct in the very limited sense that it nominates the point of delivery. But Mr Dale’s representative’s submission that it does not dictate the route from which the cane goes from the farm to the point of delivery is also correct. So, the cane supply agreement is of no assistance.

9. [9]
   The final problem for Mr Ross is that the proposed access may involve access to the property of the adjoining owner, Mr Siddle. Mr Ross, again, bears the onus of proof and there was some debate about whether or not the access route straddles Mr Dale and Mr Siddle’s property. Mr Dale and Mr Siddle say that it does; Mr Ross is of a different view. Because that issue is unresolved, I am not prepared to grant access over a route which might involve another person’s property, particularly when Mr Siddle, although a witness to this proceeding, has not been involved in any active way in a proceeding which would possibly impinge on his rights.

10. [10]
    The question for me is not whether this access is cheaper or more convenient or safer. The question is whether this access is necessary, and I am satisfied on the evidence that access is available through other points. The transport may cost more. Mr Ross might be required to plant less cane to provide access. Safer options might be available and there might a history of use through the access that Mr Ross proposes. But none of these factors demonstrates that it is necessary to grant access. In those circumstances, the application is dismissed.

Application for costs

11. [11]
    The Respondent made an application for costs under section 27A of the Land Court Act. Mr Dale has gone to the trouble of engaging legal representation. Although it is not as strict as the superior courts, there is a practice in the Land Court that costs follow the event. In those circumstances, I order that Mr Ross pay Mr Dale’s costs of and incidental to this proceeding on the District Court scale.