Griffiths v Bradshaw[2015] QSC 176

SUPREME COURT OF QUEENSLAND

1. Stuart Downs is a grazing property of more than 8,000 hectares located near Wandoan in central Queensland.  It has been held by the applicant, Mr Griffiths, under a lease from the Crown, since 1968.  Stuart Downs had an area of more than 10,000 hectares before, in 1972, Mr Griffiths subdivided the property into what are now known as Stuart Downs and Laurel Downs.
2. Laurel Downs is leased from the Crown by the respondent, Mrs Bradshaw.  It was sold by Mr Griffiths in 1974 and resold by those purchasers to Mrs Bradshaw in 1989.  Mrs Bradshaw and her husband live there. 
3. Laurel Downs has an extensive frontage to Red Range Road.  It is a gravel road connecting to the west with other roads to Wandoan and to the east with Chinchilla.  Laurel Downs is to the north of the road. 
4. Opposite Laurel Downs is another property called Red Range which Mrs Bradshaw’s husband has owned for many years and was originally leased by his grandfather in 1936. 
5. Mr Griffiths and Mr Bradshaw first met at boarding school more than 50 years ago.  The Griffiths and Bradshaw families have been neighbours for decades.  Now there is this dispute, in which Mr Griffiths asks the court to impose two easements over Laurel Downs, pursuant to s 180 of the Property Law Act 1974 (Qld).
6. One easement would be over that part of an existing road, which crosses Laurel Downs between the homestead on Stuart Downs and Red Range Road.  The road from the homestead is about 5.5 kilometres long of which about 2.2 kilometres is on Laurel Downs.  I will refer to this road, as did the evidence, as Road A.  It is used by both sides to this case.  Some of it is maintained by the local Council.
7. The other proposed easement is over a road which was referred to in the evidence as Road D.  It runs north from Red Range Road across Laurel Downs for about 1.4 kilometres before entering Stuart Downs, where 3.5 kilometres on it reaches cattle yards called the new yard.  Road D was constructed in late 1991 and has been used for transporting cattle to and from the new yard.  It is a straight road running along a ridge line and is relatively smooth and easily maintained.  It crosses no watercourses, hills or gullies.
8. Stuart Downs is not landlocked.  It has a road frontage to Red Range Road at the far eastern end of the property.  The homestead on Stuart Downs is at the western end.  If neither easement is imposed, a new road will have to be constructed on Stuart Downs.  It would run from Red Range Road (where Stuart Downs abuts Laurel Downs) in a north-westerly direction to the new yard.  The homestead could then be reached by an existing road which runs west and then south-west from the new yard. 
9. More should be said about the history of this dispute before going to the evidence and the questions to be answered under s 180. 
10. When Stuart Downs was subdivided in 1972, Mr Griffiths was asked by his solicitors to consider the question of access to a public road from each property.  He received a telegram from them advising that “both blocks must have access to roads”.  Mr Griffiths says that at the time, he thought that he could simply continue to travel across Laurel Downs over Road A and that any government requirement that Stuart Downs have access to Red Range Road could be met by its having the frontage at the eastern end of the property to which I have referred.  At that time, access to (the new) Stuart Downs from Red Range Road was by three roads.  One was Road A which led not only to the homestead but also to the cattle yards then in use (the old yard).  Another, described in the evidence as Road B, ran north from Red Range Road and was to the west of what became Road D.  The third, described in the evidence as Road C, was in the south-eastern corner and did not cross what became Laurel Downs.  Roads B and C were used infrequently and only for property maintenance and inspection of borders and fences.  Road B was never used to move cattle because it was and remains unsuitable for carrying heavy traffic.  For some years, the cattle here have been moved mostly by B-double trucks. 
11. In 1974, Mr Griffiths sold Laurel Downs to R E and J R Hopkins.  Mr Bradshaw says that at the time he was “fairly ropeable” that he had not been given an opportunity to buy Laurel Downs because of its proximity to his Red Range property.  Not long after the sale, Mr Bradshaw says he asked Mr Griffiths where his road access would be.  He recalls Mr Griffiths said that if necessary, he would construct access at the far eastern end of his property.
12. After the sale to the Hopkins, Mr Griffiths continued to use Road A without any apparent objection or incident.
13. Mr and Mrs Bradshaw twice tried to buy Laurel Downs from Mr Hopkins before Mrs Bradshaw purchased it at an auction in April 1989.  Her homestead on Laurel Downs is a transportable house that was installed at the end of 2000.  Until then, Mr and Mrs Bradshaw lived in a house on Red Range. 
14. The new yard on Stuart Downs was built around 1991.  At this time, Mr Griffiths completed the grading of what became Road D.  Since its construction, Road D has been used for the carriage of almost all of the stock leaving Stuart Downs.  Mr Griffiths has maintained the road since its construction.  The Bradshaws have not been entirely happy with this grading of Road D.  In 1999, Mrs Bradshaw told Mr Griffiths that he should not grade the road.  This surprised him, but he refrained from grading it again until 2008.  On that occasion, he asked for the Bradshaws’ permission to grade a particular area in Road D to which they agreed.  Subsequently, he graded Road D on three occasions but without seeking their permission, in order to make the road trafficable. 
15. Over the four years to 2013, on average there were five cattle consignments per year from Stuart Downs, each of approximately 70 head of cattle.  In some earlier years, there were as many as 10 consignments and in one year, none at all.  Road D is occasionally used also for access to some paddocks on Stuart Downs for mustering, to attend to the weaning of cattle and to remedy the movements of stray cattle onto and away from Stuart Downs. 
16. As noted, the transport of cattle is mainly by B-double truck which carries the equivalent of three single semi-trailer loads.  The cattle are transported either to the Biggenden or Dalby saleyards, each of which is of approximately 260 kilometres by road from Stuart Downs, or to various meatworks or feedlots.  The cattle are carried by contractors who charge on a per kilometre basis.  But if Mr Griffiths cannot continue to use Road D, and must use a new road to be constructed, the extra distance to be travelled by the contractor will not significantly add to the cost.^[1]
17. This dispute arose when Mr Griffiths received a letter of complaint from Mr and Mrs Bradshaw dated 15 February 2013.  But their complaint was not about the use of any road across Laurel Downs.  It was about a controversy involving the Bradshaws’ use of a bore on their property.  They wrote as follows:

“To whom it may concern at Stuart Downs,

It is with great regret that we pen this letter but it has come to our attention that one or all of you have without consideration for [Mr and Mrs Bradshaw] … complained to Government Departments about water used from Laurel Downs bore.

They would only be taking two thousand gallons an hour for a limited time while dust is bad, carting water from other bores or dams means more trucks on roads, more dust and more water needed and more damage to roads.  It is less than 200 mts from our bore to the pipeline and no travelling on public roads.

We also find it inappropriate that you consulted with other near neighbours but not with us about water being taken (for dust suppression) from Laurel Downs bore.

We feel this matter wasn’t thought through and if it had you wouldn’t have proceeded therefore we would like this matter resolved by the end of this week.

You leave us with no other option under these circumstances than to close the two roads that we allow you to use for access onto and off Stuart Downs.

It may be in your best interest and ours as well as neighbours and anyone using the roads for the longer term if you reconsidered and withdrew your concerns about water usage from our bore.”

18. It seems that Mr and Mrs Bradshaw had agreed with Origin Energy, which was constructing a gas pipeline in the area, to supply it with bore water for a limited time to be used for dust suppression on public roads.  This was a matter of some local controversy not confined to the present parties.  Mr and Mrs Bradshaw believed, perhaps with some justification, that Mr Griffiths had said to a government agency that water from the Laurel Downs bore should not be used in that way.  The Bradshaws’ response was this letter, by which they withdrew their longstanding consent to the use of Roads A and D, which are the two roads referred to in the penultimate paragraph of the letter.  (The roads referred to in the final paragraph, roads which were the subject of the contractor’s work.)  The validity of Mr and Mrs Bradshaw’s complaint in this letter is not relevant to this case.  What is relevant is that their complaint did not suggest any grievance about the manner or extent of the use of Roads A and D. 
19. Since 2013, Mrs Bradshaw has permitted Mr Griffiths to continue his use of Roads A and D pending the resolution of this dispute.  Each side has made open offers to resolve it.  In May 2013, the applicant offered to pay $10,000 and her legal costs to Mrs Bradshaw for an easement over these two roads.  In August 2013, he increased that offer of compensation to $18,000. 
20. In September 2013, Mrs Bradshaw offered to contribute $14,470 towards the construction of an alternative access route which would not cross any part of her property.  In November 2014, Mrs Bradshaw offered to contribute to the cost of construction of that alternative road “in whatever form or route [Mr Griffiths] chooses”, to a maximum sum of $106,655.  That amount was derived from an estimate given by engineers engaged by Mr Griffiths in their report of May 2014 as to the construction of a new access road entirely within Stuart Downs.
21. There are several possible routes for that new access road.  There was evidence from a surveyor and an engineer called in Mr Griffiths’ case and an engineer in Mrs Bradshaw’s case, as the best route.  Ultimately, they seemed to substantially agree on that subject.  There is, however, a difference of engineering opinion as to the standard of construction of some parts of this road and of its likely cost.
22. Mr Griffiths obtained a report from Mr R P Kinsella, a surveyor, as to possible routes for this new access road.  Mr Kinsella’s preferred route would have a distance of approximately 13 kilometres^[2] from a point where Stuart Downs meets the most easterly point of Laurel Downs at Red Range Road to the homestead.  It would require the construction of a crossing over a watercourse called Cockatoo Creek, which he describes as having steep sides with many rocky waterholes and sandy washouts.  He identifies a particular point as the preferred location for the creek crossing.  He describes what would be necessary to accommodate B-double cattle trucks at the creek crossing:  there would have to be an acceptable gradient on both sides and the construction of a stable crossing in the stream bed.  He says that it would also require a major modification of an existing track involving substantial clearing of vegetation and major earthworks.
23. Mr Griffiths obtained two reports from an engineer, Mr Gallagher of Highland Infrastructure Group.  His firm was asked to model the alignment of the grades of the creek crossing and determine the cost of this proposed road.  The preferred alignment, according to Mr Gallagher, is that described in his more recent report as site 2.  In his opinion, the creek crossing structure should include reinforced concrete box culverts with a concrete decking slab which he says is necessary to allow the creek to be crossed during “minor weather events”.  He also said that the provision of the culverts would greatly decrease the required volumes of earthworks which would be necessary to provide suitable approach and departure grades to the creek crossing.  He believes that the culverts would provide a safer and more reliable form of creek crossing than the alternative proposed by Mr Doyle, an engineer who prepared reports and gave evidence in the case for Mrs Bradshaw. 
24. Mr Doyle, of RMA Engineers Pty Ltd, is of the opinion that culverts are not required at the crossing and that there could be a gravel invert crossing to the creek.  In his view, concrete culverts would provide a significantly higher standard of crossing than exist on nearby roads, particularly Red Range Road, so that if vehicles could not pass those other creek crossings, it would be of no advantage that they could cross the creek on this route.  He added that the majority of roads that form the local road headwork are not sealed and are generally not trafficable following significant rainfall. 
25. Mr Gallagher and Mr Doyle also disagreed on the cost of earthworks.  In Mr Gallagher’s more recent report, he wrote that the actual cost for the earthworks may be considerably less than those shown in Mr Gallagher’s second report “depending on the type of material encountered and the use of appropriate machinery”.  They also disagreed on the steepness of the approaches to the creek crossing which would be permissible.  Mr Gallagher said that a grade of 8 per cent should be the maximums steepness.  Mr Doyle agreed, except that the relevant standards, he said, permitted some excess of 8 per cent where the number of truck movements was low, although not so as to exceed 10 per cent where the road was unsealed as it would be here.  Mr Doyle said that this would result in a significant construction cost saving, although he conceded that some additional ongoing maintenance may be required as a result.
26. In Mr Gallagher’s more recent report, he costed four alternatives, three being sites proposed by RMA and one site proposed by his firm.  At table 4 of that report, he calculated for that site a total cost of $106,655.  It is this estimate which Mrs Bradshaw used when she offered to pay that sum to resolve the dispute last November.  (Of course much has been spent by Mrs Bradshaw in this litigation since then, and that offer has been withdrawn.  At the conclusion of the hearing, through her counsel she offered to contribute $28,940 towards the construction of this new road with each party to bear its own costs of the proceeding.) 
27. Since writing that second report, Mr Gallagher has revised his estimate of the cost of the road to an amount of approximately $128,000. 
28. Mr Doyle seemed to accept that Mr Gallagher’s site was appropriate and he effectively agreed with some of Mr Gallagher’s estimate of the costs to construct the road.  Mr Doyle’s estimate of the cost of the road (or “access track” as Mr Gallagher described it) was $28,940 compared with Mr Gallagher’s estimate for that work of $28,508.  (Mr Doyle’s estimate explains the quantification of Mrs Bradshaw’s offer made at the end of the hearing.) 
29. Mr Doyle said that the creek crossing should cost $12,800 if an invert crossing was built rather than using concrete culverts.  Mr Gallagher’s costing for the concrete structures, including culverts, totalled $61,157. 
30. The other component of the cost of the new road is earthworks.  Mr Gallagher’s estimate for earthworks totalled $39,190.  Mr Doyle said that this estimate was too high and that they could perhaps be performed for as little as half that cost.  Therefore, on Mr Doyle’s view, the earthworks might cost about $20,000.  There is no certainty as to the cost of the earthworks.  No quotations have been obtained from contractors and the ultimate cost would be likely to be determined by what work was found to be required as it was undertaken. 
31. It follows that Mr Gallagher’s estimate of approximately $128,000 is more than twice that of Mr Doyle which is a total of about $60,000.  The difference in their costings is largely explained by their difference of opinion as to what should be constructed in the creek bed itself.  This is not so much a difference of engineering opinion but a difference about what is an acceptable degree of interference in the use of the road in or following rainfall.  In Mr Griffiths’ position, if he is to spend something of the order of at least $60,000 to $70,000 on this new road, he might well consider that it is worthwhile spending an extra $50,000 to have the standard of road which his engineer advises is reasonably necessary if this would be the only route in and out of his property. 
32. The new access road would be far from ideal from Mr Griffiths’ perspective.  Mr Griffiths describes that in the area where the road would cross Cockatoo Creek, the creek is deep and floods occasionally.  In his view, his property would be “considerably less accessible in periods of wet weather because of extra travel time required and the type of country (tracked, unformed roads, across heavy black soil and lighter, sandy country which becomes soaked causing vehicles to become bogged), [through] which any alternative road must pass”.
33. Because the Griffiths family shops and uses other amenities in Taroom or Wandoan, they must travel west on reaching Red Range Road.  Therefore, if they had to use this new access road, they would have to drive along Red Range Road past the point from which they have been able to reach it by the use of Road A.  That would require a further 9.7 kilometres of travel along Red Range Road, which Mr Kinsella described as a narrow road which was poorly maintained and untrafficable in parts by conventional vehicles in wet weather.  It would involve two further crossings of Cockatoo Creek on that road.  There would be a further 13 kilometres of travel on the road to be constructed on Stuart Downs to and from the homestead.  That includes the 7 kilometres between the homestead and the new yard in the course of which seven gates are encountered.  Therefore, to reach the point on Red Range Road where it meets Road A, Mr Griffiths and others would have to travel from his homestead a distance of nearly 24 kilometres instead of the present distance of about 5.5 kilometres.
34. Road A is used about 20 times each month by Mr Griffiths.  His mailbox is at the end of Road A on Red Range Road.  Wandoan and Taroom are each about 75 kilometres travelling west from where Road A meets Red Range Road.  Most of the journey to either town is on a sealed road and the journey takes about one hour.  It takes another 10 or 15 minutes to drive along Road A from the homestead.  Having to use this new road would add nearly 40 kilometres to a trip to Taroom or Wandoan or even to the mailbox. 
35. The old yard is still used.  Cattle leave there via Road A.  But as Mr Griffiths improved his property over the years, the new yard, with its location at the centre of the property, became necessary.  Mr Griffiths said that if Roads A and D could not be used, then the management of his stock would be affected because the old yard would be so far from the public road. 
36. Of particular concern to Mr Griffiths is that this restriction on his access to the public road would affect the availability of emergency services and pose risks to him and his family in the event of a medical emergency or other serious incident at Stuart Downs.  However, Mrs Bradshaw has offered to permit Mr Griffiths, his family and visitors to use Road A “in the event of a genuine emergency” (be it medical or otherwise) and for that purpose but that purpose only, she would allow Mr Griffiths use of Road A. 
37. If Mr Griffiths had access through Road A but not Road D, he says his stock could be trucked from the old yard via Road A but that it is not suitable for use by large cattle trucks because it is narrow, steep and winding.  And Mr Kinsella said that it would be difficult for a B-double truck to negotiate route A where it crosses Cockatoo Creek and because of the geometry of the road in general.  However, Mr N S Williams, an experienced cattle transporter, gave evidence in Mr Griffiths’ case that B-double trucks could use route A to reach the new yard except that the road between the homestead and the new yard would have to be widened.  He preferred Road D for access to the new yard.  In his view, this was the “logical access point for the new stockyard given that the road offers a direct route to that stockyard from Red Range Road and is significantly shorter than Road A”.  He added that “the road is firm and is sufficiently wide to allow large trucks to pass through without [an] issue”.  He was concerned about the proposed routes for a new road.  His concern was that a new road would travel through “foxbush” country, which tends to be “crusty on top and very sticky and boggy underneath” making transport vehicles tend to break through the crust of that land and become bogged.  He said that this type of surface also tended to take a long time to dry out after heavy rain.  He said that the land on Roads A and D are black soil which in his experience tends to dry out more quickly than “foxbush” country.  Mr Kinsella agreed that in wet weather the black soil clay “should hold up well”.  In his opinion, Road D would be trafficable “a short time after rain due to its location on the ridgeline and absence of any large gullies”.  He added that Road D “is mostly downhill from [the new yard] which is important for the trucking out of cattle”.
38. Mr Kinsella summarised his opinion by saying:

“[T]he current access arrangements for private access and the transport of cattle are superior to the alternative proposal.  They have been in existence for a long period of time, have minimal disturbance to the environment, and result in shorter, safer and more economic travel for the residents, the public and cattle.  The current route for cattle transport is shorter, safer and has less impact on the welfare of cattle being transported than the alternative.”

39. Mr Bradshaw pointed out that Chincilla and Toowoomba are reached by travelling east along Red Range Road, and that the use of a new road across Stuart Downs would not add to the journey in that direction.  Mr Griffiths says that he prefers to travel to the towns to the west of his property because there is less gravel and more sealed road as well as better mobile phone coverage travelling in that direction. 
40. In her affidavit, Mrs Bradshaw described the detriment to the Bradshaws if these easements are imposed.  First, there is her intention to adopt the practice known as cell grazing.  The Bradshaws have been interested in developing Laurel Downs for cell grazing for some years.  In 2008, they consulted Mr McLean of Resource Consulting Services and he advised them on the practice and prepared a development plan for their property.  The Bradshaws have attended an eight day course run by Resource Consulting Services which include instruction on cell grazing. 
41. Mr McLean gave evidence in Mrs Bradshaw’s case.  In his report, he described cell grazing as follows:

“Cell grazing is a form of time controlled grazing.  It is defined by paddock moves based on the growth rate of the pasture and its physiological requirement for rest.  Cell grazing is not centred on periodic calendar-based moves.  The actual graze period is determined not by how long management intend/want to spend in a particular paddock, but rather by the amount of time the other resting paddocks require to recover before being grazed again.  Cell grazing requires greater than seven paddocks per herd with the average number of paddocks ranging between 20 and 40.”

Cell grazing therefore differs from a practice where paddocks are continuously exposed to animals or where they are rotated through paddocks for pre-set periods of time. 

42. Mr McLean’s evidence was that:

“The rigid and immovable nature of any permanent easement makes them [sic] undesirable from a property development and management point of view.  The level of impact will depend on whether the easements are fenced off to exclude livestock and the future intensity of the grazing operation”.

Ultimately, the effect of Mr McLean’s opinion is that the location of Roads A and D would have to be factored into any plans for the arrangement of paddocks within Laurel Downs, but that cell grazing would not be precluded by the imposition of these easements.  Similarly, Mrs Bradshaw’s evidence was that she did not want “easements or any other formal access arrangements imposed on [her] land because that might interfere with the way [the Bradshaws] choose to implement cell grazing, or any other land management practice, in the future”.  She added that the Bradshaws “do not have fixed plans at the moment as to precisely how the cells and the access roads around those cells will be designed …”. 

43. Another concern of Mrs Bradshaw, she said, was that she did not want trucks or cars, by driving too fast along these roads, putting her grandchildren at risk when they visited Laurel Downs.  These roads are not close to her house.  But the children sometimes go on picnics and bushwalks.  In his written submissions, counsel for Mrs Bradshaw suggested that she would wish to impose conditions as to “reasonable speed limits and compliance with standard road safety procedures” and that Mr Griffiths should be required to give “reasonable (even if quite short) advance notice of plans heavy vehicle movements over Laurel Downs”.  I accept that a condition that such notice be given might have some benefit and that it will not be onerous or impractical, if it relates to the use of Road D.
44. Another concern of the Bradshaws is that the maintenance and use of Road D encourages strangers to travel on that road with the risk of theft or vandalism on their property.  It is submitted from Mrs Bradshaw that there could be a condition under which appropriate gates were erected and maintained.  I accept that condition would also be appropriate if an easement is to be granted over Road D.
45. Mrs Bradshaw’s evidence is that a substantial explanation for her opposition to these easements is that they would involve interaction with Mr Griffiths.  She resents the way in which, she says, he has treated Laurel Downs as if he still owns it.  She says that when her husband “granted Mr Griffiths the privilege of accessing Road D, Mr Griffiths seemed to treat that as a right.  The same has happened with Road A”.  When Mr Griffiths was asked to stop carting cattle from his new yard to his old yard over Laurel Downs, “he just carried on as though nothing had been said”.  She complains that Mr Griffiths refused to help the Bradshaws repair a fence on the boundary between their properties.  She also resents his complaint (which he denies making) about the use of her bore. 
46. There is valuation evidence from each side as to the effect upon the value of Laurel Downs if the easements are imposed.  Evidence in Mr Griffiths’ case was given by Mr Matson and in Mrs Bradshaw’s case by Mr Fraser.  By the imposition of Road A, there would be a reduction in the value of Laurel Downs by $3,920 according to Mr Matson and $5,700 according to Mr Fraser.  By the imposition of Road D, the value would be diminished by $1,850 according to Mr Matson and $3,200 according to Mr Fraser.  These are small amounts when considered against the unimproved value of Laurel Downs which is $780,000. 
47. To those amounts, each valuer added something for “injurious affection”, for the effect of dust from vehicles falling on nearby grass and affecting its “palatability”.  Mr Matson allowed for a certain number of hectares to be affected in this way and assessed the impact at the rate of 5 per cent of the unimproved value of the land per hectare resulting in figures of $6,220 for Road A and $4,320 for Road D. 
48. Mr Fraser said that the effect would be, per year, $2,900 for Road A and $950 for Road D.  In a supplementary report, Mr Matson criticised Mr Fraser’s assessments in relation to injurious affection.  He pointed out that Mr Fraser’s estimate of $2,900 per annum for Road A is the equivalent of a diminution in value of $668 per hectare within the “buffer area” (the area outside Road A but affected by the dust from its traffic) and that this equates to 36 per cent of Mr Fraser’s assessment of the value per hectare of the land ($1,850).  That is curious, because the amount allowed by Mr Fraser for the diminution in value of the land within Road A itself is 25 per cent of that value.  That point by Mr Matson is telling.  Mr Fraser’s assessment for injurious affection for each road cannot be accepted. 
49. At a discount rate of 5 per cent, Mr Fraser’s $2,900 per year equates to $58,000.  At an 8 per cent discount rate, it equates to $36,250.  At those respective rates, his assessment of $950 per annum equates to $19,000 or $11,875.
50. By the higher discount rate then, Mr Fraser’s assessment overall for Road A amounts to $41,950 and for Road D, $15,075.  Mr Fraser’s assessments are excessive for his assessments for injurious affection.  But there is no single correct figure for the monetary impact of the easements.  Ultimately, I accept that the financial impact of an easement over Road A could be as much as $25,000 and over Road D, $10,000. 
51. I go then to the questions under s 180 of the Property Law Act 1974 (Qld), which provides, in part, as follows:

“180Imposition of statutory rights of user in respect of land

(1)Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.

(2)A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable—

(a)by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and

(b)on 1 or more occasions; or

(c)until a date certain; or

(d)in perpetuity or for some fixed period;

as may be specified in the order.

(3)An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—

(a)it is consistent with the public interest that the dominant land should be used in the manner proposed; and

(b)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

(c)either—

(i)the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable; or

(ii)no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.

(4)An order under this section (including an order under this subsection)—

(a)shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and

(b)may include such other terms and conditions as may be just; and

(c)shall, unless the court otherwise orders, be registered as provided in this section; and

(d)may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that—

(i)the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or

(ii)some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and

(e)shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not.

…

(7)In this section—

owner includes any person interested whether presently, contingently or otherwise in land.

statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land, and any right to carry and place any utility upon, over, across, through, under or into land.

…

(8)This section does not bind the Crown.”

52. Before going to the arguments about the merits of the case, it is necessary to say something about the relevance or otherwise of these two properties being held under leases from the Crown under the Land Act 1994 (Qld).  Section 180(8) provides that s 180 does not bind the Crown.  But what is sought in the present case is an easement which would affect not the Crown but the owner of the lease of Laurel Downs.^[3]  The word “owner”, as defined in s 180(7), includes a lessee from the Crown such as each of these parties. 
53. Section 180(4)(c) provides for the registration of an order under s 180.  Section 180(4)(e) provides that when registered as provided in this section, the order will be binding on all persons “then entitled or afterwards becoming entitled to the servient land or the dominant land …”.  Section 276 of the Land Act provides that the chief executive is to keep, relevantly, a leasehold land register.  By s 278 of the Land Act, the chief executive must register the certain particulars and:

“(d)anything else required or needed to be registered under this or another Act.”

54. The submissions raised the possibility that s 362 of the Land Act would apply.  Section 362 provides, relevantly, as follows:

“362Easements may be created only by registration

(1)With the Minister’s written approval, an easement may be created over land granted in trust or non-freehold land (including any lease of non-freehold land or sublease of a lease of non-freehold land), other than a road, by registering the document creating the easement in the appropriate register.”

This provision applies only where the Minister has approved an easement.  It does not apply in the present context.  If it did, it would permit the court’s judgment to be overridden by the administrative Act of the Minister in withholding approval.  A construction of s 180 of the Property Law Act and s 362 of the Land Act which would have that effect on the authority and finality of the court’s judgment is to be avoided if another is open.  And if the particular jurisdiction under s 180 was meant to be subject to the Minister’s approval in relation to Crown leases, it is to be expected that such a limitation would be expressed within s 180 itself. 

55. Section 362 of the Land Act facilitates the creation of an easement over non-freehold land.  Section 180 provides another means by which an easement over freehold or non-freehold land may be created.  An easement ordered under s 180 is not conditional upon the Minister’s approval as if it were an easement created under s 362. 
56. Mr Griffiths must establish that “it is reasonably necessary in the interests of effective use in any reasonable manner” of his property that he should have a statutory right of user in respect of Mrs Bradshaw’s property.  He must also satisfy the court of the matters in s 180(3). 
57. His case is that each of Roads A and D is reasonably necessary in the relevant sense.  It is well established that reasonable necessity in this context does not mean absolute necessity.  Therefore, a finding of reasonable necessity may be made, although there is an alternative means of access.^[4]  As Barrett J (as he then was) said in Kent Street Pty Ltd v Council of the City of Sydney,^[5] in this context “the ‘reasonably necessary’ criterion does not direct attention to what is indispensable”.  His Honour there adopted the statement of Hodgson CJ in Eq. (as he then was) in 117 York Street Pty Ltd v Proprietors of Strata Plan 16123^[6] that:

“[U]se or development with the easement must be (at least) substantially preferable to the use or development without the easement.”

58. These principles were included within a statement about this threshold question by Douglas J in Lang Parade Pty Ltd v Peluso as follows:^[7]

“[23]The applicant usefully and accurately summarised the relevant principles on this issue as follows:

(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 great 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.”

(Citations omitted)

59. Neither Road A nor Road D is absolutely necessary in the interests of the effective use in any manner of Stuart Downs.  Mr Griffiths could construct a road over Stuart Downs as Mr Gallagher has described.  That would involve, on any view, a substantial cost.  As I have discussed, the exact cost could not be predicted with certainty.  But the cost would be at least $60,000 and could exceed $100,000.
60. It is not the cost of that road which is the reason why Mr Griffiths has brought this proceeding.  He refused Mrs Bradshaw’s offer to pay more than $100,000 for its construction.  As I have discussed, the proposed road would disadvantage him in several respects, compared with the use of Roads A and D.  The drive from the homestead to the public road would be several times longer in distance and in time.  The disadvantages in those respects are understated if described as matters of mere inconvenience.
61. Both Roads A and D are critical to the use of the land as a grazing property.  Without them, Mr Griffiths could use the new road.  But that would compromise his use of the old yard.  The road linking the new yard, the homestead and the old yard is not wide enough for B-double trucks.  As I have discussed, the alternative new road is disadvantageous compared with the existing Road D.  One disadvantage is that the new road is more likely to be closed after rainfall, particularly because of its different soil. 
62. On this threshold question, it is relevant to consider the burden of the imposition of a right of use, because the greater the burden, the stronger the case which is needed to justify a finding of reasonable necessity. 
63. There would be an impact upon the value of Laurel Downs.  But that is an impact for which Mrs Bradshaw could be compensated.  As the evidence of each valuer shows, the impact in that respect is minor.
64. The potential for cell grazing techniques to be used on Laurel Downs would not be significantly affected by the imposition of these two easements.  Mrs Bradshaw has not yet divided her property into paddocks for that purpose.  If and when she does so, this could be done around the two roads. 
65. I am not dismissive of her other concerns about the imposition of these roads.  But they are not of a nature or extent which would place a significant burden upon her or another owner of Laurel Downs.  Road D is used, usually, about five times per year.  Road A is used two or three times a week. 
66. It is telling that these roads were used for decades before there was any objection to their use.  Mrs Bradshaw purchased Laurel Downs necessarily knowing of the already long-standing use of Road A.  She and Mr Bradshaw consented to the use of Road D from 1991.  There were some disagreements between the parties as to the grading of Road D but not about whether its use should be discontinued.  Eventually Mrs Bradshaw withdrew her consent to the use of these roads, not because of anything to do with the roads, but because of a grievance about another matter.  The relevance of Mrs Bradshaw’s longstanding consent to the use of these roads is that it demonstrates how little is the impact of that use upon her enjoyment of Laurel Downs.  Further, the extent of that impact would not be significantly different if that use was pursuant to easements created under s 180.  The consequences of imposing these rights of user would be minimal. 
67. In this case, of course, two easements are sought.  Mr Griffiths must make out a case for each to be granted in order to obtain both easements.  I have considered whether the grant of one easement would put paid to the reasonable necessity for the other.  But I have concluded that in each case the reasonable necessity criterion has been satisfied.  If Road A but not Road D could be used, Mr Griffiths would have to widen at least the road between the homestead and the new yard in order to accommodate B-double trucks.  This would still be an inferior road for transporting cattle from the new yard.  Again, the impact or otherwise from imposing an easement for Road D must be considered and it is minimal.  The use of Mr Griffiths’ property with Road D would be “substantially preferable” to its use without it, even with Road A. 
68. Similarly, it is practically necessary in the relevant sense for the Griffiths’ property to have the use of Road A in addition to that of Road D.  Without Road A, there would be the difficulties in travel to and from the homestead and the old yard.  Again, there is the minimal impact of the use of Road A to be considered here. 
69. In summary, Mr Griffiths has established that it is reasonably necessary in the interests of the effective use of his land that he should have a statutory right of user in respect of Mrs Bradshaw’s land in order to use Roads A and D.
70. I turn then to s 180(3).  The public interest consideration in s 180(3)(a) is irrelevant in this case.  As I have already found, Mrs Bradshaw could be adequately recompensed in money for any loss or disadvantage from the imposition of these rights of way:  s 180(3)(b). 
71. It must also be established that Mrs Bradshaw’s refusal to accept the imposition of these easements is in all the circumstances unreasonable.  I am satisfied that her refusal is unreasonable.  The potential monetary impact of these easements upon her as the owner of Laurel Downs will be small and can be redressed by compensation.  The other matters raised by her as reasons for her objection do not reveal a reasonable basis for her refusal.  As I have held, the impact of these easements would be minimal.  Her refusal came from quite a different and presently irrelevant consideration.  Her persistence in that refusal has been unreasonable because she did not have a substantial reason for it. 
72. She did make an offer to settle in November 2014, which involved the payment of more than $100,000 towards the cost of an alternative road.  I infer that she made that offer not only to avoid the cost of litigation, but also because her sense of personal resentment towards Mr Griffiths had become such that she would pay that amount of money to deny him the ongoing use of these roads.  In my view, that offer did not make her refusal a reasonable one.
73. The submissions for Mrs Bradshaw emphasised that it was Mr Griffiths who had effected a subdivision which did not provide the access to Stuart Downs which he now claims.  I accept that this is a relevant consideration.  In particular, it is relevant to the exercise of the discretion under s 180 if the essential elements of an applicant’s case are established.  But that consideration is not as critical as it might have been in circumstances which do not exist here, such as proof that Mr Griffiths benefited by selling Laurel Downs for a higher price because there were no easements over it. 
74. In my conclusion, there should be an order imposing statutory rights of user in the form of easements over Roads A and D.  That order will include provision for payment by Mr Griffiths to Mrs Bradshaw of compensation in the amount of $35,000.^[8]  It should also include conditions as I have discussed at [43] and [44]. 
75. For Mr Griffiths, it was submitted that the order should expressly provide that it binds successors in title of these two properties “whether or not such persons are parties to proceedings or have been served with notice or not”.  That order would thereby set out the effect of s 180(4)(e).  In my view, that is unnecessary.  The order will be registered:  s 180(4)(c).
76. The applicant should prepare a draft order according to this judgment.  I will hear the parties as to costs.